The opinion
Filed 8/20/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CITY OF SALINAS et al., H052062
(WCAB No. ADJ14038029)
Petitioners,
v.
WORKERS’ COMPENSATION
APPEALS BOARD and LANCE D.
MIRACO,
Respondents.
We consider here whether the Workers’ Compensation Appeals Board
(WCAB, appeals board, or the Board) acted in excess of its jurisdiction under
former section 5909 of the Labor Code1 (Stats. 1992, ch. 1226, § 5, p. 5766)
(former section 5909) when it granted a petition for reconsideration of a
decision issued more than 60 days earlier. We agree with recent cases
holding that the Board acts in excess of its jurisdiction under these
circumstances. However, we further conclude that the 60-day timeframe for
the grant or denial of a petition for reconsideration does not implicate the
1 All further unspecified statutory references are to the Labor Code.
Board’s fundamental jurisdiction, allowing for the possibility of equitable
tolling in a narrow class of cases.
The City of Salinas (City) and Corvel Corporation (Corvel) (together,
petitioners) seek writ review of a decision by the Board granting Lance
Miraco’s petition for reconsideration of a decision by the workers’
compensation administrative law judge (WCJ) in Miraco’s workplace injury
case. Petitioners contend the Board lacked jurisdiction to grant
reconsideration of the WCJ’s decision because it failed to act on Miraco’s
petition within 60 days of the filing date, as required by former section 5909.
The Board and Miraco (together, respondents) maintain the Board had
jurisdiction to act on the petition for reconsideration due to the application of
equitable tolling. They contend that tolling should apply when the Board,
through no fault of the parties, is unable to review the petition for
reconsideration until after the 60-day period has expired.
We decide that former section 5909 did not preclude the application of
equitable tolling, and the facts warrant its use here. We therefore affirm the
order and opinion of the appeals board.
I. FACTS AND PROCEDURAL BACKGROUND
A. Workers’ Compensation Claim
In December 2020, Miraco filed an application for workers’
compensation claim alleging cumulative injury arising from his employment
as a police officer with the City during the period ending on December 31,
2013. Miraco claimed injury to his neck, back, and right leg, and heart
disease, gastritis, and insomnia arising out of his employment. The City and
its claims administrator, Corvel, filed an answer denying the allegations of
the application. The matter proceeded to trial before the WCJ.
2
After trial, the WCJ issued her written findings, award, and order
(findings and order), finding that Miraco “sustained injury arising out of and
in the course of employment during the period from January 1994 through
December 31, 2013, to his low back, right leg, and sustained gastritis,
gastroesophageal reflux disease, insomnia and hypertensive cardiac disease.”
Applying section 5412,2 the WCJ found the date of injury for Miraco’s
hypertensive cardiac disease was June 14, 2013, while the date of injury for
his orthopedic injuries and related conditions (including gastritis, reflux, and
insomnia) was December 16, 2020. The findings and order explained that
based on the date of injury, Miraco’s workers’ compensation claim for
hypertensive cardiac disease, filed on December 24, 2020, “is barred and is
not compensable, as beyond the statutory limitation imposed by [section]
5405.”3 Based on these findings, the WCJ awarded future medical treatment
for Miraco’s “injuries to his low back, right leg, gastritis, gastroesophageal
reflux disease, and insomnia” but not for his cardiac disease.
B. Petition for Reconsideration
On October 16, 2023, Miraco timely submitted a petition for
reconsideration of the findings and order. The petition for reconsideration
challenged the WCJ’s finding that the claim for hypertensive cardiac disease
was time barred. Miraco asserted that the facts did not support a finding of
compensable temporary disability associated with the cardiac condition, and
2 Section 5412 provides, “The date of injury in cases of occupational
diseases or cumulative injuries is that date upon which the employee first
suffered disability therefrom and either knew, or in the exercise of reasonable
diligence should have known, that such disability was caused by his present
or prior employment.”
3 Section 5405 provides “the period within which proceedings may be
commenced for the collection of” the relevant benefits “is one year from . . . [¶]
(a) The date of injury.”
3
no finding of industrial permanent disability or opinion as to industrial
causation for his cardiac condition, until the September 2021 report of
qualified medical examiner Robert Nacouzi, M.D. Miraco argued that the
WCJ erred in deeming the date of the cardiac injury to be in 2013, based on
Dr. Nacouzi’s retrospective analysis in 2021 of tests performed on Miraco in
June 2013. Instead, he maintained that Dr. Nacouzi’s report (received in
September 2021) provided the first doctor’s opinion that Miraco’s
hypertensive cardiac disease contributed to a permanent disability and was
industrially caused. Miraco asked the Board to grant reconsideration and
order, pursuant to section 5412, that the date of injury for his hypertensive
cardiac disease was September 7, 2021, that the hypertensive cardiac disease
was not barred by the statute of limitations, and that further medical care
was appropriate for the cardiac condition.
The City and Corvel answered the petition for reconsideration within
10 days, noting there was no substantial disagreement about the relevant
facts in the case, including the medical reports addressed in the WCJ
decision. As to the disputed date of hypertensive cardiac injury, the City
asserted that the medical evidence from 2013 was of permanent disability
and supported the WCJ’s determination under section 5412.
On November 7, 2023, the WCJ served on the parties a report and
recommendation on the petition for reconsideration (report and
recommendation). Apart from correcting certain dates referenced in the
findings and order, the WCJ recommended denying the petition for
reconsideration.
Under former section 5909, based on Miraco’s filing of the petition for
reconsideration on October 16, 2023, the Board had until December 15, 2023,
to “act[] upon” the petition before it was “deemed to have been denied.” (See
4
former § 5909 [“A petition for reconsideration is deemed to have been denied
by the appeals board unless it is acted upon within 60 days from the date of
filing.”].) The Board did not issue its decision until March 12, 2024 (March
12 order), when it granted the petition for reconsideration.
In deeming its March 12 order timely, the Board invoked the judicially
created exception to the 60-day deadline articulated in Shipley v. Workers’
Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104 (Shipley) for petitions that are
not received by the Board due to procedural irregularity. The March 12 order
noted that pursuant to regulation, petitions for reconsideration are required
to be filed at the district office, not directly with the Board, which then has 60
days under former section 5909 to act upon the petition. However, according
to the Board, the Shipley decision applies the principle that “ ‘a party may
not be deprived of a substantial right without notice’ ” to allow tolling of the
60-day period to grant or deny reconsideration during the period that the
petition has not yet been received by the Board.
The Board reasoned that pursuant to Shipley, timely petitions “filed
and received” by the Board may be acted upon within the statutory period by
either denying or granting the petition, allowing tolling of the 60-day
statutory period for “a petition not received by the Appeals Board within 60
days due to irregularities outside the petitioner’s control.” The Board
adopted this approach in the March 12 order.
The Board found that Miraco timely filed his petition for
reconsideration in the Salinas district office on October 16, 2023, and while
the application was scanned into the electronic adjudication system (EAMS),4
4 The March 12 order explained the processing of a petition for
reconsideration. When a petition for reconsideration is filed, it is scanned
5
notice was not provided to the Board until the district office electronically
transmitted the case through EAMS to the Board on January 12, 2024.
Because the district office had not timely provided notice to the Board and
the delay was not due to any fault of the parties, the Board decided its time to
act on Miraco’s petition was tolled until 60 days after January 12, 2024. It
concluded it had authority to act despite the 60-day limit set forth in former
section 5909. The Board asserted its approach was consistent with Court of
Appeal decisions since Shipley recognizing the application of due process to
avoid depriving a party of the statutory right to reconsideration but also
acknowledged conflicting Court of Appeal authority in Zurich American Ins.
Co. v. Workers’ Comp. Appeals Bd. (2023) 97 Cal.App.5th 1213 (Zurich).
On the merits, the Board granted the petition for reconsideration and
substituted its findings for that of the WCJ. It set the date of injury for
Miraco’s injuries, including hypertensive cardiac disease, as December 11,
2020, and determined that compensation for those injuries was not time-
barred.
C. Petition for Writ of Review
The City and Corvel filed a petition for writ of review in this court
(petition) to challenge the lawfulness of the Board’s order granting the
petition for reconsideration after the expiration of the 60-day statutory
into EAMS pursuant to the division rules (Cal. Code Regs., tit. 8, §§ 10206
[electronic document filing], 10205.11 [manner of filing]). Next, a “task” is
sent to the WCJ through EAMS, and the WCJ receives notice that a report is
required. (See id., tit. 8, §§ 10206, 10962.) However, no such notice is
provided to the Board until the district office electronically transmits the case
to the Board through EAMS. The EAMS system is maintained by the
administrative director of the Division of Workers’ Compensation, who
administers all 24 district offices and the employment of more than 190
WCJs. (See Mayor, supra, 104 Cal.App.5th at p. 1303, fn. 3, review granted.)
6
deadline delineated by former section 5909. Citing the split in appellate
authority regarding the Board’s authority to decide a petition after the
statutory deadline has passed, petitioners argued that the reasoning in
Shipley is flawed, the Board’s reliance on it misplaced, and the Board’s order
granting the reconsideration petition a nullity because, under former section
5909, reconsideration was denied by operation of law.
Respondents each filed an answer in opposition to the petition. Miraco
argued that the Board correctly applied the reasoning in Shipley to consider a
petition for reconsideration when the district office failed to timely forward
the file to the Board. Miraco pointed to the understanding of his counsel,
whose prior communications with the Board confirmed that the 60-day period
for decision begins only when the Board receives the file from the district
office. In this matter, Miraco’s counsel’s assistant apparently contacted the
Board’s reconsideration unit on January 12, 2024, to check the status of the
petition for reconsideration and was advised it had not been received and
that the Board would request the file from the district office and provide an
updated timeline once it obtained the file. In its answer, the Board further
argued that the 60-day statutory timeline is not “ ‘mandatory and
jurisdictional’ ” and that Zurich is not inconsistent with Shipley on this point.
On October 15, 2024, this court issued an order granting the writ of
review. The writ of review directed the Board to certify and return its official
record in the case to this court and invited briefing. Miraco and the Board
submitted opposition to the requested relief and petitioners filed a reply to
the opposition. After oral argument in this matter and at this court’s
7
request, the parties further submitted supplemental briefing on the doctrine
of equitable tolling.5
During the briefing period for this writ proceeding, the Legislature
amended section 5909, effective July 2, 2024. We discuss these changes to
the statute in our discussion, post. In addition, the California Supreme Court
granted review of similar issues in Mayor v. Workers’ Comp. Appeals Bd.
(2024) 104 Cal.App.5th 713 (Mayor), review granted December 11, 2024,
S287261.
II. DISCUSSION
The question presented is whether the Board may apply equitable
tolling to act upon a petition for reconsideration after expiration of the 60-day
timeline set forth in former section 5909, and, if so, whether the facts of this
case warrant the application of tolling principles.
Miraco contends that equitable tolling should be applied in
circumstances where, as here, the Board informed the applicant that it has
60 days from when it receives the file to act on the reconsideration petition.
He asserts that recent case authority in Zurich and Mayor is not inconsistent
with this approach and maintains that those cases affirmed a so-called
“Shipley exception” to the 60-day deadline where the Board misleads a
diligent petitioner. He further contends that former section 5909 does not
contain any explicit prohibition against equitable tolling.
The Board similarly maintains that equitable tolling may be applied
under the circumstances. However, the Board prefaces its argument by
asserting, given the California Supreme Court’s decision to consider the
5 This court requested supplemental briefing by the parties on two
issues: whether former section 5909 allowed for equitable tolling and,
assuming arguendo that it did, whether the doctrine applies here.
8
equitable tolling question presented in Mayor, that this court should stay
proceedings on this writ until the Supreme Court completes its review.
Petitioners oppose awaiting disposition of the California Supreme
Court’s decision in Mayor and assert that the statutory arguments advanced
by respondents are inconsistent with case precedent interpreting similar
language in other statutory contexts. Petitioners further argue that the
various justifications articulated by the Board for allowing reconsideration
after expiration of the statutory deadline are a flawed attempt to shift the
blame for file transmission errors to other entities. Petitioners assert that by
unequivocal operation of law, the Board’s failure to comply with former
section 5909 results in denial of the petition for reconsideration.
A. Writ Review and Standard of Review
Appellate courts are authorized to review WCAB decisions and to issue
a writ of review pursuant to section 5950. “The application for writ of review
must be made within 45 days after a petition for reconsideration is denied, or,
if a petition is granted . . ., within 45 days after the filing of the order,
decision, or award following reconsideration.” (Ibid.) There is no dispute
that writ review is the proper mechanism for review in this matter.
“Judicial review ‘is limited to determining whether the Board acted
“without or in excess of its powers” and whether its decision was
unreasonable, not supported by substantial evidence, or procured by fraud.’ ”
(Mayor, supra, 104 Cal.App.5th at p. 1305, review granted, citing Department
of Corrections & Rehabilitation v. Workers’ Comp. Appeals Bd. (2018) 27
Cal.App.5th 607, 617 (Department of Corrections); § 5952.) “A court is not
permitted ‘to hold a trial de novo, to take evidence, or to exercise its
independent judgment on the evidence.’ (§ 5952.) ‘The findings and
9
conclusions of the appeals board on questions of fact are conclusive and final
and are not subject to review.’ (§ 5953.)” (Mayor, at p. 1305.)
We review issues of statutory interpretation and questions of law de
novo. (Department of Corrections, supra, 27 Cal.App.5th at p. 617.)
Nonetheless, “unless clearly erroneous, the [Board]’s interpretation of the
workers’ compensation laws is entitled to great weight.” (Genlyte Group, LLC
v. Workers’ Comp. Appeals Bd. (2008) 158 Cal.App.4th 705, 714; accord
Boehm & Associates v. Workers’ Comp. Appeals Bd. (1999) 76 Cal.App.4th
513, 516 [“[W]e generally defer to the appeals board’s interpretation of labor
statutes, unless the interpretation is clearly erroneous.”].) “When the
statutory language is clear and unambiguous, there is no room for the
Board’s interpretation.” (Department of Corrections, at p. 617.)
As to whether former section 5909 limited the Board’s fundamental
jurisdiction to act is a matter of statutory interpretation, (Zurich, supra, 97
Cal.App.5th at pp. 1226, 1230), we review the availability of equitable tolling
de novo.
B. Legal Background: Shipley, Zurich, Mayor, and Statutory
Amendments
During the relevant time period, former section 5909 provided: “A
petition for reconsideration is deemed to have been denied by the appeals
board unless it is acted upon within 60 days from the date of filing.” (Stats.
1992, ch. 1226, § 5, p. 5766.) A denial (or other order or decision) by the
Board is further reviewable by seeking a writ of review within 45 days in the
Supreme Court or Court of Appeal for the appellate district where the
claimant resides. (§ 5950.)
Three published Court of Appeal decisions have considered whether the
language of former section 5909 imposes a mandatory deadline that
10
precludes the Board from exercising equitable powers to toll or extend the
deadline. This analysis depends on the classification assigned to the 60-day
deadline based on the language of the statute and whether it describes
fundamental jurisdiction. We review the principles that determine these
classifications before turning to the case authority guiding our review.
1. Principles Governing Mandatory and Directory Deadlines
“Statutory deadlines are either mandatory or directory.” (Mayor,
supra, 104 Cal.App.5th at p. 1305, review granted.) “Whether a requirement
is mandatory or directory is determined largely by its effect: ‘If the failure to
comply with a particular procedural step does not invalidate the action
ultimately taken . . . the procedural requirement is referred to as “directory.”
If, on the other hand, it is concluded that noncompliance does invalidate
subsequent action, the requirement is deemed “mandatory.” ’ ” (Kabran v.
Sharp Memorial Hospital (2017) 2 Cal.5th 330, 340 (Kabran).)
“Mandatory deadlines can be further classified depending on how a
violation of the deadline affects a court’s jurisdiction.” (Mayor, supra, 104
Cal.App.5th at p. 1306, review granted.) “ ‘There are many time provisions,
e.g., in procedural rules, that are not directory but mandatory; these are
binding, and parties must comply with them to avoid a default or other
penalty. But failure to comply does not render the proceeding void’ in a
fundamental sense.” (Kabran, supra, 2 Cal.5th at p. 341.) We refer to such a
violation, wherein “courts that violate procedural requirements, order relief
that is unauthorized by statute . . ., or otherwise ‘fail to conduct [themselves]
in the manner prescribed’ by law as acting ‘in excess of jurisdiction.’ ” (Id. at
pp. 339–340, italics omitted.)
Other statutory deadlines “affect a court’s fundamental jurisdiction in
the sense of entirely depriving the court of power to hear or determine the
11
case or authority over the subject matter.” (Mayor, supra, 104 Cal.App.5th at
p. 1306, review granted.) “Because a lack of fundamental jurisdiction
implicates ‘the basic power of a court to act,’ courts must enforce
jurisdictional limitations even if considerations of waiver, estoppel, consent,
or forfeiture might otherwise excuse a party’s failure to comply with them.
[Citations.] In other words, when a party fails to comply with a jurisdictional
time bar, the court has no choice but to dismiss the case for lack of
jurisdiction, even if equitable concerns would support reaching the merits.”
(Law Finance Group, LLC v. Key (2023) 14 Cal.5th 932, 950 (Law Finance).)
Given the harsh consequence of a jurisdictional time bar, courts apply a
presumption that statutes do not limit fundamental jurisdiction absent a
clear indication of legislative intent. (Law Finance, supra, 14 Cal.5th at
p. 950.) “This approach reflects ‘ “a preference for the resolution of litigation
and the underlying conflicts on their merits by the judiciary.” ’ [Citations.]
To be sure, mandatory procedural rules — like many statutes of limitations
or other filing deadlines — serve important policy goals, and courts must
enforce them when properly raised. [Citation.] But we will not assume that
the Legislature intended to imbue a time bar with jurisdictional
consequences merely because the statute speaks in mandatory terms; as we
have said, ‘jurisdictional rules are mandatory, but mandatory rules are not
necessarily jurisdictional.’ ” (Ibid.)
Possible indicia that the Legislature intended to overcome the
presumption that deadlines are not jurisdictional include whether the statute
provides for “ ‘ “a consequence or penalty . . . for failure to do the act within
the time commanded” ’ ” (Kabran, supra, 2 Cal.5th at p. 343) and “whether
the consequences of holding a time limitation mandatory or jurisdictional
‘would defeat or promote the purpose of the enactment.’ ” (Ibid.) In Kabran,
12
the Supreme Court held that Code of Civil Procedure section 659 and former
section 660, governing procedures for a motion for new trial, included “clear
markers of legislative intent that their respective deadlines are
jurisdictional.” (Kabran, at p. 344.) These indicia included language in the
statutory provision that if a motion for new trial “ ‘is not determined within
said period of 60 days, . . . the effect shall be a denial of the motion without
further order of the court’ ” and “ ‘[t]he times specified . . . shall not be
extended by order or stipulation.’ ” (Ibid.)
By contrast, in Law Finance, the Supreme Court concluded that the
100-day deadline in Code of Civil Procedure section 1288.2 for a party to file a
request to vacate an arbitration award after service of the final award in
response to a petition to confirm an award did not affect the court’s
fundamental jurisdiction and did not preclude equitable tolling. (Law
Finance, supra, 14 Cal.5th at p. 941.) Our Supreme Court observed there
was “nothing in [Code of Civil Procedure] section 1288.2’s instructions for the
timing of responses requesting vacatur clearly indicat[ing] the Legislature’s
intent to remove a class of cases from the court’s fundamental jurisdiction.”
(Id. at p. 950.) Instead, the provision “speaks only to obligations of the
litigants and makes no reference at all to the power of the courts” (ibid.), in
contrast with the statutory deadline at issue in Kabran, which the court
explained “sp[oke] directly to the trial court’s power to act on an untimely
motion.” (Id. at p. 951.) The high court concluded that while the court may
act in excess of jurisdiction by entertaining an untimely challenge to a
petition to confirm an award (ibid.), “absent clearer evidence of legislative
intent, we presume that the Legislature did not intend to limit the
fundamental jurisdiction of the courts by enacting the 100-day deadline to
13
challenge an arbitral award under [Code of Civil Procedure] section 1288.2.”
(Id. at p. 952.)
2. Shipley, Zurich, Mayor, and Amendments to Former Section 5909
In Shipley, which predates both Kabran and Law Finance, the
appellate court considered the language of former section 5909 in the context
of the workers’ compensation statutes to conclude that the time for acting on
a petition for reconsideration may be adjusted under appropriate
circumstances. Shipley reasoned that while the language of former section
5909 “appears mandatory and jurisdictional, the time periods must be based
on a presumption that a claimant’s file will be available to the board; any
other result deprives a claimant of due process and the right to a review by
the board.” (Shipley, supra, 7 Cal.App.4th at p. 1107.) Because the applicant
in Shipley made inquiries to the board about his file, which had been lost or
misplaced, and “received reassurances from the board that his petition would
be considered either after his file was found or after he reconstructed a
duplicate file” (id. at p. 1108), the court determined that the former section
5909 “time period after which a petition for reconsideration is deemed denied
by operation of law was tolled while the board misplaced [the applicant]’s file
and led him to believe his petition would eventually receive consideration”
(id. at p. 1107). The court cited “elementary due process” and “common
sensibilities” as justification for entitling the applicant “to the board’s review
of his petition and its decision on its merits.” (Id. at p. 1108.)
The Court of Appeal in Zurich disagreed with Shipley. It examined the
language of former section 5909 under the principles for identifying a
jurisdictional deadline articulated in Law Finance, Kabran, and other
decisions of our Supreme Court. (Zurich, supra, 97 Cal.App.5th at pp. 1227–
1230.) Comparing the statutory language at issue in Law Finance and that
14
in Kabran, the court observed that the deemed-denied language of former
section 5909 is similar to the language of Code of Civil Procedure former
section 660 that Kabran addressed, even in the absence of language explicitly
directed to the court’s power to rule on the motion at issue expiring beyond a
set deadline. (Zurich, at p. 1228; see Kabran, supra, 2 Cal.5th at p. 343.)
The court in Zurich acknowledged Supreme Court precedent treating
similar deemed-denied deadlines as affecting fundamental jurisdictional, or
providing that an act outside the deadline is in excess of jurisdiction.
(Zurich, supra, 97 Cal.App.5th at pp. 1228–1229; see Bonnell v. Medical
Board (2003) 31 Cal.4th 1255, 1265 (Bonnell) [holding state agency’s issuance
of a 28-day stay “void for lack of jurisdiction”]; id. at p. 1260 [where statute
provided for state agency to grant a stay on a filed petition “ ‘for no more than
10 days’ ” and stated, “ ‘If no action is taken on a petition within the time
allowed for ordering reconsideration, the petition shall be deemed denied.’ ”];
see also J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th
648, 652 (J.M.) [rejecting plaintiff’s application to file late claim against
school district where Government Claims Act provision provided that the
application “is deemed denied on the 45th day after it was presented” if the
public entity does not act on it, and minor’s counsel failed to petition for relief
within the time provided after a claim is “deemed denied”].)
The Zurich court cited the plain meaning and legislative history of
former section 5909 as support for its interpretation of the statute. It
reasoned that like the statutes in Kabran and Bonnell, the statutory
language specifies a consequence for the failure of the Board to act within 60
days—that is, the petition is deemed denied. (Zurich, supra, 97 Cal.App.5th
at p. 1231.) The court found the legislative history of former section 5909
supportive of its interpretation because the strict time limitation is consistent
15
with the legislative aims of the workers’ compensation system “to achieve
‘ “average justice” ’ that is ‘speedily and inexpensively administered’ instead
of ‘exact justice’ that could consume too much time and leave the claimant in
debt.” (Zurich, at p. 1235, quoting Cal. Industrial Accident Com., Rep. of the
Industrial Accident Com. of the State of Cal. for the Year 1913 and from
January 1 to June 30, 1914 (1914) pp. 8–9.)
The court in Zurich also cited the structure of the statute and
mechanism for judicial review pursuant to section 5950. The court reasoned
that “[former] section[] 5909 and [section] 5950 work in tandem, providing
certainty in section [former] 5909 as to when the deadline for seeking judicial
review under section 5950 commences. Absent an interpretation of [former]
section 5909 that construes the deemed-denied language to terminate the
Board’s jurisdiction after the passing of 60 days, an aggrieved party would
not know when to file a petition for a writ of review—after the 60-day
deadline under [former] section 5909 or months or years later when the
Board acts on the petition.” (Zurich, supra, 97 Cal.App.5th at p. 1235.) Like
in J.M., where the California Supreme Court explained “[b]y placing this
limitation on the entity’s time to act, the Legislature ensured that
applications would not languish” (J.M., supra, 2 Cal.5th at p. 653), the Zurich
court reasoned that “[a] similar construction here is most consistent with the
Constitutional directive for the workers’ compensation system to accomplish
substantial justice expeditiously and inexpensively.” (Zurich, at p. 1235; see
Cal. Const., art. XIV, § 4.)
Based on these authorities, the Court of Appeal concluded that the
Board had acted in excess of its jurisdiction in purporting to grant the
petition for reconsideration after it was deemed denied under former section
5909. (Zurich, supra, 97 Cal.App.5th at p. 1236.) The court expressly
16
declined to resolve whether the Board’s failure to act on the petition for
reconsideration within 60 days was not only in excess of its jurisdiction but
also implicated its fundamental jurisdiction. It stated, “even if the Board
retained fundamental jurisdiction but acted in excess of its jurisdiction by
purporting to decide [the] petition after it was deemed denied under [former]
section 5909, . . . equitable principles do not support the Board’s position.”
(Id. at p. 1236, fn. 17.)
The Zurich court addressed whether the due process principles cited in
Shipley required an exception to the 60-day deadline. (Zurich, supra, 97
Cal.App.5th at p. 1237.) The court disagreed that an applicant has a due
process right to have the Board review a petition for reconsideration after the
60-day deadline, citing former “section 5909’s clear language” providing that
a petition for reconsideration is deemed denied within 60 days, if the Board
has not acted on it, and affording judicial review under section 5950. (Ibid.)
The court further decided that “even if Shipley is read to allow some form of
equitable tolling to extend the deadline in [former] section 5909 (or section
5950) where a diligent petitioner is misled to believe the Board would review
his or her petition and is therefore deprived of an administrative or judicial
review, [it] reject[ed] the Board’s position the deadline may be extended any
time the Board fails to act due to deficiencies in the administrative process.”
(Ibid.) Rather, the Zurich court suggested that any exception to the 60-day
deadline in former section 5909 must be limited to circumstances like those
in Shipley, “where [the claimant] acts diligently to protect his or her rights
and the Board misleads the petitioner into believing the Board would
consider the petition after the 60-day deadline had passed, thereby depriving
the claimant of review by the Board (and potentially any judicial review).”
(Zurich, at p. 1238.)
17
The court concluded that the facts in Zurich were dissimilar from those
of Shipley and did not support the application of an exception based on
equitable principles. (Zurich, supra, 97 Cal.App.5th at pp. 1238–1239.) In
contrast with Shipley, the petitioner in Zurich had not made inquiries prior
to the 60-day deadline expiring and did not file a petition for writ of review
under section 5950 within 45 days of the denial of its petition by operation of
law. Rather, the insurer bringing the petition for reconsideration before the
Board “took no action for nine months following the filing of its petition to
inquire as to the status of its petition.” (Zurich, at p. 1239.) The Zurich court
rejected the Board’s reliance on an exception to former section 5909 under the
equitable principles articulated in Shipley. (Id. at p. 1240.)
Mayor involved similar circumstances, in that the Board had asserted
it had not received the petition for reconsideration until well after 60 days
postfiling and had cited Shipley for the proposition that the order on the
petition would be considered timely if issued within 60 days of the Board
receiving notice of the petition. (Mayor, supra, 104 Cal.App.5th at pp. 1301–
1303, review granted.)
In Mayor, the WCJ issued an award of total permanent disability in
favor of Mayor based on an industrial injury he suffered in the workplace,
and the employer, Ross Valley Sanitation District (Ross Valley), petitioned
the Board for reconsideration. (Mayor, supra, 104 Cal.App.5th at pp. 1301–
1302, review granted.) At the time, former section 5909 provided that a
petition for reconsideration is deemed denied unless the Board acts on it
within 60 days from the date of filing. (Mayor, at p. 1302.) Ross Valley wrote
to the Board 74 days after the filing of its petition for reconsideration to
inquire about its status, and Mayor thereafter requested a hearing to enforce
the WCJ’s award. (Ibid.) The Board issued a decision 144 days after the
18
filing of the petition for reconsideration in which it granted reconsideration,
noted it had first received notice of the petition only about a month prior, and
cited Shipley as support for deeming the order timely under the
circumstances. (Ibid.) Shortly after Mayor filed his petition for writ of
mandate in the Court of Appeal challenging the Board’s order on the ground
that it had lost jurisdiction over the matter 60 days after Ross Valley filed for
reconsideration, the Board issued a revised decision in which it stated that it
was rescinding the WCJ’s award and returning the matter to the trial level
for further proceedings. (Id. at pp. 1302–1303.) Mayor sought a writ of
mandate directing the Board to rescind its order granting Ross Valley’s
petition for reconsideration of the award of permanent disability.
While the appeal in Mayor was pending, the Legislature amended
former section 5909 by enacting Assembly Bill No. 171 (2023–2024 Reg.
Sess.) (Assembly Bill 171) (Stats. 2024, ch. 52, § 27).6 (Mayor, supra, 104
Cal.App.5th at p. 1303, review granted.) The Mayor court agreed with the
reasoning of Zurich, found that the recent statutory “amendment at once
implicitly confirms Zurich’s interpretation of the former statute and puts to
rest the Board’s concerns about the consequences of that interpretation for
6 As summarized by Mayor, “Section 5909 now states, ‘(a) A petition for
reconsideration is deemed to have been denied by the appeals board unless it
is acted upon within 60 days from the date a trial judge transmits a case to
the appeals board. [¶] (b)(1) When a trial judge transmits a case to the
appeals board, the trial judge shall provide notice to the parties of the case
and the appeals board. [¶] (2) For purposes of paragraph (1), service of the
accompanying report, pursuant to subdivision (b) of [s]ection 5900, shall
constitute providing notice. [¶] (c) This section shall remain in effect only
until July 1, 2026, and as of that date is repealed.’ The former version of
section 5909 is currently set to be reinstated on July 1, 2026. (Stats. 2024,
ch. 52, § 28.)” (Mayor, supra, 104 Cal.App.5th at pp. 1303–1304, review
granted.)
19
the future,” (id. at p. 1301) and issued a writ of mandate overturning the
Board’s order on the petition for reconsideration as an act in excess of its
jurisdiction. (Id. at pp. 1309, 1311–1313, 1316.)
Mayor concluded that the Legislature’s enactment of Assembly Bill
171—which took place about six months after the decision in Zurich—
indicated a legislative response to Zurich.7 (Mayor, supra, 104 Cal.App.5th
at p. 1312, review granted.) Mayor noted that in this instance, the
Legislature did not attempt to clarify the existing meaning of former section
5909 (cf. McClung v. Employment Development Dept. (2004) 34 Cal.4th 467,
473 [explaining the Legislature’s attempt to clarify meaning of preexisting
law is not definitive]) but actually “changed the trigger for the running of the
60-day deadline to have it run from the WCJ’s transmission of the case file to
the Board.” (Mayor, at p. 1312.) As interpreted by Mayor, this decision
signified “a tacit acquiescence to Zurich’s interpretation of former section
5909’s rule as mandatory, since if the deadline was not mandatory and the
Board’s practice was permissible there would have been no reason to alter the
deadline.” (Ibid.)
Mayor noted that the legislative findings set forth in Assembly Bill 171
referenced challenges for the enforcement of labor laws created by staffing
7 Mayor further noted, in response to a petition for rehearing
suggesting that the changes to former section 5909 were recommended before
Zurich, that even if the Legislature did not specifically intend to respond to
Zurich, it did intend to respond to the workload problems identified by the
Board and furthermore did so while expressing no disagreement with Zurich.
(Mayor, supra, 104 Cal.App.5th at p. 1314, fn. 8, review granted; see
Blankenship v. Allstate Ins. Co. (2010) 186 Cal.App.4th 87, 96 [“ ‘When a
statute has been construed by judicial decision, and that construction is not
altered by subsequent legislation, it must be presumed that the legislature is
aware of the judicial construction and approves of it.’ ”].)
20
emergencies at the Department of Industrial Relations, which “could not
‘immediately and adequately be addressed through standard civil service
recruitment practices.’ (Stats. 2024, ch. 52, § 1.)” (Mayor, supra, 104
Cal.App.5th at p. 1312, review granted.) Given the Board’s position in Zurich
and other cases citing the need for additional resources to adequately respond
to petitions for reconsideration, Mayor concluded that “[t]he Legislature’s
choice to make its change to section 5909 temporary and have it expire on
July 1, 2026, corroborates this view of the amendment as a short-term fix to
the Board’s need for resources to meet former section 5909’s deadline, not a
repudiation of Zurich’s interpretation of the nature of that deadline.” (Ibid.)
Mayor also looked to the committee and floor analyses of Assembly Bill
171 as further confirmation of its statutory interpretation. (Mayor, supra,
104 Cal.App.5th at p. 1313, review granted.) It explained that, for future
cases, basing the new deadline on the WCJ’s transmission of a case to the
appeals board “gives the Board the additional time to act . . . that it says it
needs to resolve normal human errors or administrative irregularities.”
(Ibid.) The court suggested that while the changes under Assembly Bill 171
expire in July 2026, “the Legislature’s prompt response to the Board’s
concerns should reassure the Board that the Legislature will continue to
monitor the issue and address it again if it persists.” (Id. at pp. 1313–1314.)
Mayor addressed the Board’s argument that Zurich was not
inconsistent with Shipley and could be cited as support for applying equitable
considerations to excuse a grant of a petition for reconsideration after the 60-
day cutoff. (Mayor, supra, 104 Cal.App.5th at p. 1310, review granted.)
Mayor recognized that Zurich did not resolve whether a violation of former
section 5909 implicated the fundamental jurisdiction of the appeals board, or
merely was in excess of the Board’s jurisdiction, and that Zurich “assumed
21
that Shipley correctly decided that equitable considerations could avoid the
running of the former section 5909 deadline.” (Ibid.)
Even so, Mayor emphasized that Zurich disagreed with Shipley’s
reliance on due process as providing a right of review even after the 60-day
period has expired and further rejected the Board’s position that an exception
under Shipley could apply to extend the deadline any time the Board failed to
act due to a deficiency in the administrative process. (Mayor, supra, 104
Cal.App.5th at p. 1311, review granted.) Mayor concluded that the facts
before it, like in Zurich, did not support the narrow application of an
exception under Shipley, noting “there is no suggestion that the Board here
misled Ross Valley into disregarding the deadline for judicial review.” (Ibid.)
Regarding the Board’s argument that it would violate due process for a
litigant’s petition for reconsideration to be denied without the Board even
considering it (especially when the scope of judicial review under section 5950
is more limited than the complete reconsideration the Board can provide),
Mayor pointed out the countervailing concerns (not addressed in Shipley)
“that the workers’ compensation system is intended to provide substantial
justice quickly and expeditiously, not duplicate the formality of the courts”
(Mayor, supra, 104 Cal.App.5th at p. 1314, review granted) and that the
opposing party in a workers’ compensation proceeding also has an interest in
avoiding protracted proceedings (id. at p. 1315). Mayor also rejected the
Board’s argument based on its longtime reliance on Shipley, noting that “ ‘a
long-standing and incorrect procedure remains incorrect.’ ” (Ibid., quoting
Earley v. Workers’ Comp. Appeals Bd. (2023) 94 Cal.App.5th 1, 11 (Earley).)
C. Analysis
We decline the Board’s invitation to stay our consideration of this
appeal until the Supreme Court completes its review in Mayor. To suspend
22
indefinitely the resolution of Miraco’s workers’ compensation claim would run
contrary to the purpose behind the restrictive statutory deadlines for Board
action on a petition for reconsideration (§ 5909) and on a party’s time-limited
right to judicial review (§ 5950). (See Zurich, supra, 97 Cal.App.5th at
p. 1235 [citing the California Supreme Court’s construction of the limitation
on a public entity’s time to act (in a different statutory context) as intended to
“ ‘ensure[] that applications would not languish’ ”]; Cal. Const., art. XIV, § 4
[expressing among the purposes of the workers’ compensation system and
administrative body to “accomplish substantial justice in all cases
expeditiously, inexpensively, and without incumbrance of any character”].)
Turning to petitioners’ substantive contentions, we largely agree with
their criticisms of the Board’s broad reliance on Shipley to extend the 60-day
period set out in former section 5909. The principles distinguishing
mandatory and directory deadlines, considered together with the language of
former section 5909 and the structure and history of legislation establishing
the workers’ compensation system, support the conclusion articulated by the
Court of Appeal in Zurich and adopted in Mayor. For the reasons stated in
those opinions, we agree that the “deemed denied” language of former section
5909 is mandatory, rendering—absent an exception—a decision outside the
60-day statutory deadline in excess of the Board’s jurisdiction to act.8
(Zurich, supra, 97 Cal.App.5th at p. 1231; Mayor, supra, 104 Cal.App.5th at
p. 1302, review granted.)
8 We do not purport to express an opinion on the distinct issue (not
before us) mentioned briefly in Zurich, supra, 97 Cal.App.5th at page 1230
and addressed in Earley, supra, 94 Cal.App.5th at page 11, regarding
whether the Board is required to issue a final ruling on the merits within 60
days.
23
However, neither Zurich nor Mayor decided whether the Board’s failure
to act on a petition for reconsideration within 60 days meant only that it
acted in excess of its jurisdiction, or whether it lost fundamental jurisdiction
to consider the petition. Instead, both decisions recognized that, even if the
expiration of the 60-day deadline did not affect the Board’s fundamental
jurisdiction, the circumstances of those cases did not support the application
of equitable tolling. (Zurich, supra, 97 Cal.App.5th at p. 1236, fn. 17; Mayor,
supra, 104 Cal.App.5th at pp. 1310–1311, review granted.)
Respondents rely on this ambiguity to assert that the Board’s conduct
in this case is not inconsistent with Zurich and Mayor, both of which appear
to recognize the possibility that equitable tolling might apply under former
section 5909 in appropriate circumstances. Having carefully considered our
Supreme Court’s articulation of the standards and principles governing the
determination of jurisdictional deadlines, we agree. We decide that nothing
in the language, statutory structure, or legislative history of former section
5909 suggests that, by mandating the consequence that a petition for
reconsideration be “deemed denied” if the Board has not acted on it within
the 60-day period, the Legislature intended to deprive the Board of
fundamental jurisdiction over the matter. (See Kabran, supra, 2 Cal.5th at
p. 341; Law Finance, supra, 14 Cal.5th at p. 950.)
The consequence imposed by former section 5909 (a deemed denial of
the petition for reconsideration) restricts the window for the Board to respond
to a petition for reconsideration and requires prompt action by a litigant
wishing to seek judicial review of the Board’s action or denial (§ 5950) but
lacks express effect depriving the appeals board of its power to act after that
time. (See Law Finance, supra, 14 Cal.5th at p. 951.) This silence
distinguishes former section 5909 from Code of Civil Procedure section 660,
24
examined in Kabran, where our high court observed the statute explicitly
removed from the court its power to rule on a motion for new trial after a
stated time. (Kabran, supra, 2 Cal.5th at p. 344.)
Absent clearer evidence of legislative intent to limit the fundamental
jurisdiction of the Board after 60 days have expired, we assume that the
Board’s decision to grant Miraco’s petition for reconsideration outside the
deadline was an act “in excess” of its jurisdiction, but not one falling outside
of its fundamental jurisdiction.9 (Law Finance, supra, 14 Cal.5th at p. 952.)
A procedural deadline that is mandatory but does not clearly limit the
fundamental authority of the court (or here, the Board) over the subject
matter or the parties may remain subject to judiciously applied equitable
exceptions if the court retains fundamental jurisdiction. (Zurich, supra, 97
Cal.App.5th at p. 1237.)
9 Petitioners cite Bonnell as support for a contrary analytical approach
that would assume the unambiguous 60-day deadline forecloses the Board
from retaining fundamental jurisdiction. The California Supreme Court’s
holding in Bonnell appears to treat the statutory deadline for the length of
time a state administrative agency can stay its decision in order to review a
petition for reconsideration once the petition has been filed (Gov. Code,
§ 11521, subd. (a)) as a matter of fundamental jurisdiction to act, calling the
agency’s decision outside of that period “void for lack of jurisdiction.”
(Bonnell, supra, 31 Cal.4th at p. 1265.) However, there is no indication that
the nature of the jurisdictional effect was raised in Bonnell, nor did the court
address the subject of the presumption—later examined in Kabran and Law
Finance—that statutes do not limit courts’ fundamental jurisdiction absent a
clear indication of legislative intent. (Law Finance, supra, 14 Cal.5th at
pp. 949–950.) Because cases are not authority for propositions not considered
(Howard Jarvis Taxpayers Assn. v. Newsom (2019) 39 Cal.App.5th 158, 169),
we decline to interpret the Supreme Court’s analytical approach in Bonnell as
authority for assuming that former section 5909’s “deemed denied”
consequence speaks to the fundamental jurisdiction of the Board.
25
The doctrine of equitable tolling is typically applied in the statute of
limitations context to “ ‘suspend or extend a statute of limitations as
necessary to ensure fundamental practicality and fairness’ ” (McDonald v.
Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99.) It
“applies ‘occasionally and in special situations’ to ‘soften the harsh impact of
technical rules which might otherwise prevent a good faith litigant from
having a day in court.’ ” (Saint Francis Memorial Hospital v. State
Department of Public Health (2020) 9 Cal.5th 710, 719 (Saint Francis).)
Because courts’ authority to toll a filing deadline derives “from their
inherent equitable powers — not from what the Legislature has declared in
any particular statute” (Saint Francis, supra, 9 Cal.5th at p. 720), “we
presume that statutory deadlines are subject to equitable tolling.” (Ibid.) On
the other hand, where an examination of the statutory language or
underlying policy demonstrates a legislative intent to preclude courts from
providing equitable relief from the statutory deadline, tolling is not
permitted. (Law Finance, supra, 14 Cal.5th at p. 953.)
We discern no express prohibition in the statutory language of former
section 5909 that would preclude, as a matter of law, the application of
traditional equitable doctrines like tolling. (Law Finance, supra, 14 Cal.5th
at p. 952 [tolling derives from the inherent equitable powers of the court, not
from a legislative delegation of authority].) A recent significant panel
decision of the appeals board adheres to this interpretation of former section
5909, tolling the deadline to act on a timely petition for reconsideration when
the Board has not received the petition within 60 days due to irregularities
outside the petitioner’s control. (Ja’Chim Scheuing (Sandra) v. Lawrence
Livermore National Laboratory (2024) 89 Cal. Comp. Cases 325, 330.) The
interpretation of the appeals board, though not binding or controlling on this
26
court, is generally entitled to great weight unless clearly erroneous. (Genlyte,
supra, 158 Cal.App.4th at p. 714; see also Land v. Workers’ Comp. Appeals
Bd. (2002) 102 Cal.App.4th 491, 495, fn. 2.) Because the consequence set
forth in former section 5909 for the Board’s failure to act on a timely filed
petition for reconsideration within 60 days is not “clear and unambiguous” as
to the Board’s fundamental inability to act after that point, we give due
consideration to the Board’s interpretation on the issue of tolling in
appropriate circumstances. (Cf. Department of Corrections, supra, 27
Cal.App.5th at p. 617.)
Our conclusion that the appeals board retains the authority to exercise
equitable powers where appropriate, and in the absence of legislative
direction to the contrary, is consistent with the judicial powers vested in it.
(§ 111; see, e.g., Truck Ins. Exchange v. Workers’ Comp. Appeals Bd. (2016) 2
Cal.App.5th 394, 401 (Truck Ins.) [“The appeals board has broad equitable
powers with respect to matters within its jurisdiction.”]; Mayor, supra, 104
Cal.App.5th at p. 1304, review granted [“The Board is a court of limited
jurisdiction authorized by the California Constitution to exercise a portion of
the state’s judicial power.”].)
Petitioners argue that the application of such “broad equitable powers”
(Truck Ins., supra, 2 Cal.App.5th at p. 401) should not extend to equitable
tolling. Petitioners maintain that the Board’s application of equitable tolling
contravenes the 60-day adjudication deadline and harms litigants, including
injured workers, who “must wait numerous months or years to receive a
decision on reconsideration petitions.” Petitioners point out that even in the
absence of an explicit statutory prohibition, the “manifest policy underlying a
statute” may preclude equitable tolling. (Saint Francis, supra, 9 Cal.5th at
p. 720.) They assert that the policy behind the 60-day adjudication deadline
27
is to expedite the resolution of reconsideration petitions, consistent with the
constitutional mandate to decide workers’ compensation cases expeditiously.
We are not persuaded. The “manifest policy” underlying the workers’
compensation scheme is not limited to the expeditious resolution of workers’
compensation cases. The goal as articulated by the California Constitution is
to establish “[a] complete system of workers’ compensation” that includes the
vesting of “power, authority and jurisdiction in an administrative body with
all the requisite governmental functions to determine any dispute or matter
arising under such legislation, to the end that the administration of such
legislation shall accomplish substantial justice in all cases expeditiously,
inexpensively, and without incumbrance of any character.” (Cal. Const., art.
XIV, § 4, italics added.) Narrowly construed equitable doctrines help
accomplish both expeditious resolution and substantial justice.
The July 2, 2024 amendment to former section 5909 does not undercut
our conclusion that equitable tolling may be applied in appropriate
circumstances. The enactment of Assembly Bill 171 changed the starting
point for the running of the 60-day deadline from the filing of the petition for
reconsideration in the district office to the WCJ’s transmission of the case file
to the Board. (§ 5909; Stats. 2024, ch. 52, § 27.) The Court of Appeal in
Mayor interpreted this change as tacit affirmation of the mandatory nature of
former section 5909 as interpreted in Zurich, “since if the deadline was not
mandatory and the Board’s practice was permissible there would have been
no reason to alter the deadline.” (Mayor, supra, 104 Cal.App.5th at p. 1312,
review granted.)
We agree with Mayor insofar as these legislative changes, which
remain operative until July 1, 2026, are reasonably viewed as confirmatory of
the mandatory effect of the “deemed denied” consequence of a nondecision by
28
the Board within the specified timeframe. At the same time, by aligning the
start of the 60-day period with the transmission of the case file by the WCJ to
the appeals board, the Legislature has—in practical effect—achieved the very
change the Board has historically sought by tolling former section 5909’s 60-
day timeline until the case file is received from the district office.
Thus, while it appears the Legislature intended to forestall any need
for equitable tolling by supplying at least a temporary fix for the delay
between a petitioner’s filing for reconsideration and transmission of the file to
the appeals board, the changes also suggest an intent to avoid the denial of
petitions by operation of law before the case file even reaches the Board.
(Mayor, supra, 104 Cal.App.5th at p. 1313, review granted [explaining that
“committee and floor analyses of Assembly Bill 171’s effects on former section
5909 confirm that the Legislature understood it was making substantive
modifications to the law to avoid Zurich’s effects, not disagreeing with
Zurich’s analysis”].) Further, the amended statute does not expressly
preclude equitable remedies, leaving open to continued judicial interpretation
the question of former section 5909’s 60-day deadline’s effect on the Board’s
fundamental jurisdiction. (See Law Finance, supra, 14 Cal.5th at p. 953.)
We recognize that, in fulfillment of the constitutional policy of
expeditious administration of the workers’ compensation scheme (Cal. Const.,
art. XIV, § 4), any equitable exceptions to the timeline implicitly set out by
former section 5909 must be narrowly construed. (Zurich, supra, 97
Cal.App.5th at p. 1221.) Indeed, “equitable tolling is a narrow remedy that
applies . . . only ‘occasionally and in special situations.’ ” (Saint Francis,
supra, 9 Cal.5th at p. 724.) As our Supreme Court has explained, “[T]he
doctrine allows our courts, ‘in carefully considered situations’ [citation] to
29
exercise their inherent equitable powers to ‘soften the harsh impact of
technical rules.’ ” (Ibid.)
Our high court has instructed courts to look to three “ ‘elements’ ” in
deciding whether equitable tolling applies. (Saint Francis, supra, 9 Cal.5th
at p. 724.) These elements are timely notice, lack of prejudice to the
defendant, and reasonable and good faith conduct by the plaintiff. (Ibid.; see
also Addison v. State of California (1978) 21 Cal.3d 313, 319 (Addison).)
We apply these factors to the Board’s decision to equitably toll section
5909 to the period between Miraco’s filing of the petition for reconsideration
and the Board’s receipt of the file transmission from the district office. Our
review of the Board’s exercise of its equitable powers under the circumstances
“ ‘is limited to determining whether the Board acted “without or in excess of
its powers” and whether its decision was unreasonable, not supported by
substantial evidence, or procured by fraud.’ ” (Mayor, supra, 104 Cal.App.5th
at p. 1305, review granted; § 5952.)
As to the first element of timely notice, “courts focus on whether the
party’s actions caused the defendant to be ‘fully notified within the [statute of
limitations] of plaintiffs’ claims and their intent to litigate.’ ” (Saint Francis,
supra, 9 Cal.5th at p. 726.) Petitioners assert there is nothing in the record
to suggest that the City and Corvel had notice that the Board would extend
its adjudication deadline after the 60-day deadline had already expired due to
denial by operation of law.
This argument misconstrues the purpose of the timely notice prong of
equitable tolling, the focus of which is making the defendant aware of the
claims and the plaintiff’s intent to litigate. (Saint Francis, supra, 9 Cal.5th
at p. 726.) Here, petitioners indisputably received the timely filed petition for
reconsideration and understood Miraco’s claims and intent to litigate the
30
reconsideration petition. Petitioners filed their responses and were aware of
the pending decision by the Board and relevant statutory deadlines on the
reconsideration petition. These facts are sufficient to satisfy timely notice.
As to the possibility that the Board would exercise equitable authority
to issue a decision after the expiration of the 60-deadline, the parties
acknowledge that practitioners in the area of workers’ compensation law
have operated with an understanding since Shipley that the Board could
potentially “toll” the period to decide a reconsideration petition if, by no fault
of the parties, it was not in receipt of the petition as of the 60-day deadline.
During oral argument, counsel for petitioners acknowledged that Shipley has
long governed the Board’s practice for this purpose. We conclude that Miraco
timely notified petitioners of his intent to seek reconsideration of the WCJ’s
award and order and petitioners were on notice of the Board’s longstanding
adherence to Shipley.
Turning to the second element—lack of prejudice—petitioners assert
they were prejudiced by their inability to challenge the hearsay statements
invoked by Miraco in conveying reliance on his counsel’s assistant’s telephone
communication with the Board of its intent to reset the deadline upon receipt
of the reconsideration petition. Petitioners maintain that allowing Miraco to
obtain reversal of a denial made final by operation of law on this basis would
abrogate and undermine the rule of appellate practice requiring a complete
record (where evidence of the conversation is not in the record) and violate
the City’s right to fully litigate and challenge the factual basis for the ruling.
Petitioners’ arguments miss the mark. Their inability to factually
challenge Miraco’s counsel’s representation about the January 12, 2024
telephone conversation does not go to the merits of petitioners’ defense to the
reconsideration petition. Any asserted prejudice from the delay itself and
31
associated costs—as indicated by petitioners’ counsel at oral argument—is
not the type of prejudice contemplated by courts in evaluating application of
equitable tolling.
The “core focus of our prejudice analysis” is “whether application of
equitable tolling would prevent the defendant from defending a claim on the
merits.” (Saint Francis, supra, 9 Cal.5th at p. 728; see also Addison, supra,
21 Cal.3d at p. 318 [deciding the “defendant can claim no substantial
prejudice, having received timely notice of possible . . . liability upon filing of
the compensation claim, and having ample opportunity to gather defense
evidence in the event a court action ultimately is filed”].) Petitioners do not
articulate any prejudice based on the Board’s tolling of the reconsideration
deadline to their ability to defend on the merits the findings of the WCJ
against the reconsideration petition. We conclude that respondents have
satisfied the second element of equitable tolling.
Lastly, petitioners contend respondent Miraco’s conduct was objectively
unreasonable given that the decision in Zurich (decided on December 18,
2023) was issued only three days after expiration of the decisional deadline in
this case. According to petitioners, this left Miraco 42 days to seek review in
this court of the denial by operation of law pursuant to section 5950, which he
failed to do. They assert that the decision not to seek writ of review and
instead continue relying on Shipley was objectively unreasonable given
Zurich’s rejection of Shipley.
The Board counters that Zurich does not clearly repudiate Shipley but
confirms the nonjurisdictional nature of the 60-day deadline. Miraco further
argues that under these circumstances, where the failure to transmit the file
was of no fault of respondents, his counsel’s actions in contacting the Board
after passage of the 60 days to inquire about the reconsideration petition and
32
relying on the Board’s assurances that it would reset the timeline for deciding
the reconsideration was objectively reasonable.10 Miraco asserts that had the
Board informed counsel in the phone call that the reconsideration petition
had been denied by operation of law, Miraco “would have immediately sought
relief from this [c]ourt.” He submits that he acted in good faith in relying on
the information provided by the Board.
In construing the third element of equitable tolling, courts must
consider “two distinct requirements” – objective reasonableness and
subjective good faith. (Saint Francis, supra, 9 Cal.5th at p. 729.) We
determine reasonableness based “not on a party’s intentions or the motives
behind a party’s actions, but instead on whether that party’s actions were
fair, proper, and sensible in light of the circumstances.” (Ibid.) By contrast,
“[g]ood faith pivots instead on a party’s intentions.” (Ibid.) We decide both
requirements are met here.
Miraco timely filed a petition for reconsideration of the WCJ’s findings
and order barring the hypertensive cardiac disease portion of his workers’
compensation claim. Although the WCJ filed and served her report and
10 Petitioners do not dispute that the Board, for reasons not clear from
the record, received transmission of the petition for reconsideration on
January 12, 2024, approximately 29 days outside of the 60-day window,
based on the October 16, 2023 filing date. According to Miraco’s verified
answer to the petition for writ review, the transmission to the Board was
likely prompted by a telephone inquiry on that date by Miraco’s counsel’s
assistant, who contacted the Board to obtain a status update on the petition
for reconsideration and was informed that the Board had not received the
file, would contact the district office to obtain it, and that a new timeframe
for a decision would apply once the Board received the file. The Board issued
its decision granting the reconsideration request on March 12, 2024—within
the 60-day deadline, assuming the validity of the extension exercised by the
Board.
33
recommendation on November 7, 2023, the matter was not transmitted to the
Board until more than two months later, on January 12, 2024, apparently
following the inquiry made by Miraco’s attorney’s assistant to the appeals
board unit regarding the petition. The parties do not dispute these dates.
Although Miraco’s inquiry to the Board occurred outside the 60-day
deadline, the facts of this case do not reflect the extended inaction and
apparent lack of diligence that marked the petition for reconsideration in
Zurich, where the party seeking reconsideration “took no action for nine
months following the filing of its petition to inquire as to the status of its
petition.” (Zurich, supra, 97 Cal.App.5th at p. 1239.) While issuance of the
Zurich decision might have reasonably prompted Miraco’s counsel to seek
review in this court within 45 days of the deemed-denial, it was not
objectively unreasonable for counsel to rely on the general understanding
that the Board continued to follow Shipley and reset the 60-day clock upon
transmission of the file and await the merits decision.11 Nor does the record
reveal any subjective intent by Miraco or his counsel (or the Board, for that
matter) in so doing to act other than in good faith.
We decide these facts warrant application of the limited exception
recognized in Zurich in which “a petitioner acts diligently to protect his or her
rights and the Board misleads the petitioner into believing the Board would
consider the petition after the 60-day deadline had passed.” (Zurich, supra,
97 Cal.App.5th at p. 1238.) We conclude the Board did not err in its
conclusion that Miraco has established the elements of equitable tolling.
11 Indeed, in this court the Board continues to argue for the vitality of
the Shipley rule, further underscoring Miraco’s reasonable reliance on the
Board’s interpretation of equitable tolling.
34
In deciding the elements of equitable tolling have been satisfied here,
we do not endorse the broad reading of Shipley advanced by the Board. We
agree with the thrust of the decisions in Zurich and Mayor that the Board’s
systemic reliance on Shipley violates the principle that equitable tolling must
be the exception, not the rule. As our Supreme Court has cautioned, “the
conclusion that the Legislature hasn’t prohibited a statute of limitations from
being tolled ought not transform equitable tolling into ‘a cure-all for an
entirely common state of affairs.’ ” (Saint Francis, supra, 9 Cal.5th at p. 724.)
Nevertheless, we are persuaded that, on these facts, Miraco has
established the three elements necessary for equitable tolling of the 60-day
period in former section 5909. We conclude that the application of equitable
tolling in this instance represents “the kind of narrowly drawn flexibility for
unusual situations” (Saint Francis, supra, 9 Cal.5th at p. 721) that may
appropriately be applied when “warranted under the facts presented, with
careful consideration of the policies underlying the doctrine.” (Id. at p. 730.)
Although the Legislature has since addressed the effects of this
administrative irregularity by statutory amendment, the refusal to permit an
equitable exception in this case would result in an injustice to Miraco and
contravene the legislative directive to liberally construe these statutory
provisions “with the purpose of extending their benefits for the protection of
persons injured in the course of their employment.” (§ 3202.)
III. DISPOSITION
The March 12, 2024 opinion and order of the Workers’ Compensation
Appeals Board is affirmed. Respondents shall recover their costs in this
original proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
35
______________________________________
Danner, Acting P. J.
WE CONCUR:
____________________________________
Lie, J.
____________________________________
Wilson, J.
H052062
City of Salinas et al. v. Workers’ Compensation Appeals Board et al.
Yrulegui & Roberts, Stephen Roberts; Wilson, Elser, Moskowitz,
Edelman & Dicker, LLP, Robert Cooper and Gary S. Pancer for Petitioners.
Allison J. Fairchild and Eric D. Ledger for Respondent Workers’
Compensation Appeals Board.
Dilles Law Group, PC, Nicholas J. Dilles for Respondent Lance Miraco.
H052062
City of Salinas et al. v. Workers’ Compensation Appeals Board et al.