The opinion
Filed 12/18/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ZURICH AMERICAN INSURANCE B321864
COMPANY,
(W.C.A.B. No. ADJ487398)
Petitioner,
v.
WORKERS’ COMPENSATION
APPEALS BOARD,
Respondent;
CALIFORNIA INSURANCE
GUARANTEE ASSOCIATION,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for writ of mandate.
Petition granted.
Law Offices of Tracey Lazarus and Patrick D. O’Keeffe for
Petitioner.
Allison J. Fairchild for Respondent.
Guilford Sarvas & Carbonara and Justin P. Harrison for
Real Party in Interest.
_________________________________
Labor Code section 5909 provides that if the Workers’
Compensation Appeals Board (Board) does not act on a party’s
petition for reconsideration of a decision by the workers’
compensation judge (or arbitrator) within 60 days, the petition is
“deemed to have been denied.” 1 In this case, the Board granted a
petition for reconsideration filed by real party in interest,
California Insurance Guarantee Association (CIGA), more than
nine months after CIGA filed its petition. The Board sought to
justify its late decision on the basis its delay was the result of an
“administrative irregularity” in the workers’ compensation
appeals process that delayed transmission of CIGA’s timely filed
petition to the Board. Zurich American Insurance Company
seeks a writ of mandate directing the Board to rescind its order
granting CIGA’s petition, arguing the petition had already been
denied by operation of law under section 5909.
In response, the Board relies on an exception to
section 5909’s 60-day deadline recognized over three decades ago
by the Court of Appeal in Shipley v. Workers’ Comp. Appeals Bd.
(1992) 7 Cal.App.4th 1104 (Shipley), which found the 60-day
deadline was tolled because the claimant diligently inquired into
the status of his petition for reconsideration and the Board
misled the claimant to believe his petition would be considered
once the lost file on his case was retrieved or reconstructed.
We conclude the language and purpose of section 5909
show a clear legislative intent to terminate the Board’s
1 Further undesignated statutory references are to the Labor
Code.
2
jurisdiction to consider a petition for reconsideration after the
60 days have passed, and thus, decisions on the petition made
after that date are void as in excess of the agency’s jurisdiction.
After 60 days the administrative process is final, and a petitioner
has 45 days under section 5950 in which to seek a writ of review
of the decision of the workers’ compensation judge or arbitrator
by the Court of Appeal or Supreme Court. The Board’s contrary
interpretation—that it retains jurisdiction to consider a petition
well after the 60-day deadline has run—would deprive the parties
of finality and create uncertainty as to when the clock begins to
run on a petitioner’s right to seek judicial review.
Because section 5909 divests the Board of jurisdiction to
consider a deemed-denied petition for reconsideration after
60 days has passed, we disagree with the conclusion in Shipley,
supra, 7 Cal.App.4th at page 1108 that a petitioner has a due
process right to review by the Board after the deadline. But even
if Shipley can be read to apply equitable principles to allow the
Board to consider a petition for reconsideration beyond the
statutory deadline, the exception must be applied only (1) where
a diligent petitioner’s rights were violated due to the fault of the
Board (such as a lost petition), and (2) the Board misled the
petitioner in a manner that deprived the petitioner of a right to
review by the Board or the appellate courts.
The Board asserts the workers’ compensation appeals
process system is inefficient, with petitions electronically filed or
submitted to a district office being lost or, as here, the arbitrator
failing to submit the arbitration record to the Board. We reject
the Board’s assertion it is powerless to address these failures.
Nor is the remedy for the Board to ignore the Constitutional
mandate in article XIV, section 4 that the Board “expeditiously”
3
determine matters under the Workers’ Compensation Act (§ 3201
et seq.). Petitioners must be diligent—promptly inquiring of the
Board as to the status of their petitions and, if the Board does not
act within the 60-day time period, seeking review of the deemed-
denied petition under section 5950 within 45 days. Had CIGA
timely filed a petition for review, it could have obtained judicial
review of the arbitrator’s initial decision.
We issue a writ of mandate directing the Board to rescind
its order granting CIGA’s petition for reconsideration and
ordering Zurich dismissed as a party defendant from the
proceeding.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Workers’ Compensation Claim
On September 27, 2000 Carlos Uribe suffered an industrial
injury during his employment with XCEL Mechanical Systems,
Inc., and he thereafter filed a workers’ compensation claim. At
the time of Uribe’s injury, XCEL was insured for workers’
compensation by Reliance Insurance. Reliance was subsequently
declared insolvent and placed in liquidation. CIGA assumed
administration of Uribe’s claim. 2
2 CIGA is an unincorporated association of insurers licensed
in California, which pays claims of insolvent insurers pursuant to
Insurance Code section 1063, et seq. (Isaacson v. California Ins.
Guarantee Assn. (1988) 44 Cal.3d 775, 786-787.) CIGA is
required to “pay and discharge covered claims.” (Ins. Code,
§ 1063.2, subd. (a).) Insurance Code section 1063.1,
subdivision (c)(9)(A), excludes from the definition of a “covered
claim” any claim that “is covered by any other insurance of a
class covered by this article available to the claimant or insured.”
4
B. CIGA’s Claim Against Zurich
Nearly 20 years after Uribe’s injury, on August 3, 2020
CIGA, which had been paying benefits on Uribe’s workers’
compensation claim, petitioned to join Zurich in the workers’
compensation proceeding based on a December 17, 2018 report
prepared by the Workers’ Compensation Insurance Rating
Bureau showing that Zurich provided coverage for XCEL during
the policy period from February 1, 2000 through February 1,
2001. On September 1, 2020 the Board ordered Zurich joined as
a party defendant. On October 13 Zurich sent a letter to Uribe
stating that it was handling Uribe’s claim for XCEL, and it was
denying liability for Uribe’s injury for lack of medical evidence to
support his injury and proof that he was working on a job site
insured by Zurich. 3
The parties arbitrated whether Zurich was liable for
payments made on Uribe’s claim. 4 On August 23, 2021 the
arbitrator denied CIGA’s petition, finding CIGA’s claim that
Zurich provided coverage for XCEL with respect to Uribe’s injury
was not supported by substantial evidence. Therefore, CIGA was
required to continue to administer Uribe’s claim and pay all
lawful benefits, without reimbursement from Zurich.
C. CIGA’s Petition for Reconsideration and the Board’s
3 Although Zurich denied liability, CIGA did not. Therefore,
this is a dispute between the insurance carriers, not over whether
Uribe was entitled to coverage for his injuries.
4 Pursuant to section 5275, all coverage issues in workers’
compensation cases must be resolved by arbitration.
5
Delayed Response
On August 31, 2021 CIGA filed a petition with the Board
for reconsideration of the arbitrator’s ruling. Zurich answered
the petition on September 7, 2021. Under section 5909, the last
day for the Board to act on CIGA’s petition was November 1,
2021, the first business day following expiration of the 60-day
period. (See Cal. Code Regs. tit. 8, § 10600, subd. (b) [“Unless
otherwise provided by law, if the last day for exercising or
performing any right or duty to act or respond falls on a weekend,
or on a holiday for which the offices of the Workers’
Compensation Appeals Board are closed, the act or response may
be performed or exercised upon the next business day.”].)
On December 7, 2021, Zurich filed with the Board a “notice
of lodgment” 5 of the arbitrator’s amended findings, attaching the
arbitrator’s decision and requesting the Board dismiss it from the
proceeding because the arbitrator’s decision had become final.
Zurich noted the Board did not act on the petition before the 60-
day deadline, and CIGA did not file a petition for review in the
Court of Appeal pursuant to section 5950 within 45 days from the
date the petition for reconsideration was denied by operation of
law. 6
5 We have omitted some of the boldface and capitalization of
documents in the record.
6 Section 5950 provides, “Any person affected by an order,
decision, or award of the appeals board may, within the time
limit specified in this section, apply to the Supreme Court or to
the court of appeal for the appellate district in which he resides,
for a writ of review, for the purpose of inquiring into and
determining the lawfulness of the original order, decision, or
award or of the order, decision, or award following
6
On December 13, 2021 CIGA submitted a reply brief in
which it argued the Board retained jurisdiction over CIGA’s
petition for reconsideration because the petition had not been
forwarded to the Board’s reconsideration unit until October 6,
2021, a month and a half after CIGA filed its petition. Thus,
CIGA suggested, the Board “may not have been given enough
time to properly respond to CIGA’s contentions.” Citing Shipley,
supra, 7 Cal.App.4th 1104, CIGA claimed, “The Board’s
jurisdiction continues to the extent its failure to act on CIGA’s
petition for reconsideration within 60 days of its filing was due to
the Board’s mistake or inadvertence and not caused by
petitioner.”
The Board failed to act (again) until June 13, 2022. By this
time, more than nine months had passed since CIGA had filed its
petition for reconsideration. The Board issued an order granting
the petition for reconsideration for the purpose of allowing an
opportunity for further study of the factual and legal issues (a
“grant-for-study” order). The order explained, “[B]ased upon our
initial review of the record, we believe reconsideration must be
granted to allow sufficient opportunity to further study the
factual and legal issues in this case. We believe that this action
is necessary to give us a complete understanding of the record
and to enable us to issue a just and reasoned decision.”
The Board’s June 13 order attached a “notice pursuant to
Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th
reconsideration. The application for a writ of review must be
made within 45 days after a petition for reconsideration is
denied, or, if a petition is granted or reconsideration is had on the
appeal board’s own motion, within 45 days after the filing of the
order, decision, or award following reconsideration.”
7
1104.” The notice stated the Board “first received notice of the
petition[] [for reconsideration] on or about April 13, 2022.” Citing
Shipley, the notice concluded the “[o]pinion and order granting
petition for reconsideration filed simultaneously with this notice
may be considered timely if issued within 60 days of the Appeals
Board receiving notice of the petition[].”
D. Zurich’s Petition for Writ of Mandate
In response to the Board’s grant-for-study order, Zurich
filed a petition for writ of mandate in this court requesting we
issue an order directing the Board to rescind its June 13, 2022
order and dismissing Zurich as a defendant.
In the Board’s letter response, it explained that due to an
“administrative irregularity,” the Board did not receive CIGA’s
petition until after the 60-day time period under section 5909 had
passed. Further, the Board pointed out that petitions for
reconsideration are filed in the district office or electronically
through the electronic adjudication management system (EAMS),
and that staff must manually notify the Board that
reconsideration was being sought. As a result, delays in the
transmission from the district office to the Board often occur
because of “the nature of EAMS” or “normal human error.”
According to the Board, these irregularities arose in
approximately 1 percent of petitions before the COVID-19
pandemic and 5 percent thereafter. The Board stated this
irregularity was “not within the control of CIGA or Zurich.” The
Board observed the current “Workers’ Compensation system is
much larger [than before], with the number of claims filed
increasing exponentially since the latter part of the 20th century,
without a concomitant increase in resources to handle those
8
claims.” Thus, an extension of the time in which to respond was
necessary “to ensure due process to all parties.” The opinion
noted the arbitrator filed his report but did not submit to the
district office an electronic copy of the complete arbitration file.
As a result, the Board did not receive the arbitrator’s record,
including the exhibits filed by the parties, transcripts and
summaries of the witnesses’ testimony, party stipulations, or the
arbitrator’s evidentiary rulings and findings.
We issued an order to show cause requesting the Board
address in its return (1) whether there were any communications
between CIGA and the Board while the petition for
reconsideration was pending and before the Board granted
reconsideration, and (2) whether the Shipley exception to the
time limitation in section 5909 should be limited to situations in
which a party that has filed a petition for reconsideration with
the Board relies to its detriment on communications from the
Board about the status of the petition.
The Board filed a return stating CIGA was not required to
and did not contact the Board while its petition for
reconsideration was pending, and CIGA had a due process right
to reconsideration by the Board regardless of CIGA’s diligence.
Zurich filed a reply asserting the Board lacked jurisdiction once
the 60-day deadline had passed, and further, Shipley should not
apply in light of CIGA’s lack of diligence. CIGA submitted a
letter stating simply that it “concurs with the analysis and
reasoning provided” by the Board in its return. We now grant the
petition.
DISCUSSION
9
A. Writ Review Is Appropriate
The Board contends writ relief is not appropriate because
its decision to apply an exception to section 5909 constituted a
discretionary application of the exception recognized in Shipley,
and further, the petition was premature because Zurich could
seek a writ once the Board issued its final order on CIGA’s
petition for reconsideration. Neither contention has merit.
Section 5955 provides the Supreme Court and Courts of
Appeal have jurisdiction to issue a writ of mandate “in all proper
cases” to, among other things, “review, reverse, correct, or annul
any order, rule, decision, or award” of the Board. “‘[P]roper
cases’” include those in which “mandamus is available under
Code of Civil Procedure section 1085.” (Greener v. Workers’
Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1046; accord, Earley v.
Workers’ Comp. Appeals Bd. (2023) 94 Cal.App.5th 1, 10
(Earley).) A petitioner seeking a writ of mandate must show
“‘(1) a clear, present and usually ministerial duty on the part of
the respondent . . . ; and (2) a clear, present and beneficial right
in the petitioner to the performance of that duty . . . .’” (Santa
Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th
525, 539-540; see Earley, at p. 10.)
Zurich’s petition sought an order requiring the Board to
withdraw its June 13, 2022 order and dismiss Zurich as a
defendant on the basis CIGA’s petition had already been deemed
denied under section 5909. Determination of whether the 60-day
deadline under section 5909 is jurisdictional is the proper subject
of writ relief because the question involves statutory
interpretation, not administrative discretion. (See Earley, supra,
94 Cal.App.5th at p. 10 [writ of mandate was proper to compel
Board to comply with its duty under section 5908.5 to explain its
10
reasons for granting reconsideration and identify the evidence
supporting its decision]; 7 Rea v. Workers’ Comp. Appeals Bd.
(2005) 127 Cal.App.4th 625, 632-633, 643 [granting writ relief
under section 5950 annulling Board’s new procedures involving
the Uninsured Employers Fund].)
Further, Zurich’s petition is not premature because its
challenge is not to the merits of the Board’s decision, but rather,
to the Board’s consideration of CIGA’s petition for
reconsideration once the petition was deemed denied. Zurich
lacked an adequate remedy at law if it had to wait for the
conclusion of a void procedure to seek relief in this court.
B. CIGA’s Petition for Reconsideration Was Denied by
Operation of Law 60 Days After It Was Filed
1. Principles of jurisdiction
The Supreme Court in Law Finance Group, LLC v. Key
(2023) 14 Cal.5th 932, at pages 949 to 950 (Law Finance) recently
discussed the framework for determining whether a trial or
reviewing court has “fundamental jurisdiction” to decide a
dispute where a statutory deadline for action has passed. The
court observed, “‘A lack of fundamental jurisdiction is “‘“an entire
absence of power to hear or determine the case, an absence of
authority over the subject matter or the parties.”’”’” (Id. at
p. 949, quoting Kabran v. Sharp Memorial Hospital (2017)
7 In Earley, supra, 94 Cal.App.5th at page 11, Division Eight
of this district held the Board’s grant-for-study procedure is
invalid in light of section 5908.5’s plain language requiring the
Board to specify the reasons for its decision and the evidence
relied upon. Zurich does not in this proceeding raise the validity
of the Board’s use of its grant-for-study procedure.
11
2 Cal.5th 330, 339 (Kabran).) The court explained, “Because of
those harsh consequences, we apply a ‘presumption that statutes
do not limit the courts’ fundamental jurisdiction absent a clear
indication of legislative intent to do so.’ [Citations.] 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.
(See Kabran, at pp. 341-342.) 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.’ (Id. at p. 342;
see id. at pp. 340-342.) To establish that a particular filing
deadline is jurisdictional, more is required. Much as the high
court has said of Congress, our Legislature ‘must do something
special, beyond setting an exception-free deadline, to tag a
statute of limitations as jurisdictional’ in the fundamental sense.”
(Law Finance, at p. 950.)
The Law Finance court concluded the deadline in Code of
Civil Procedure section 1288.2 for a party to file a request to
vacate an arbitration award within 100 days of service of the
final award in response to a petition to confirm an award did not
affect the court’s fundamental jurisdiction because “nothing in
section 1288.2’s instructions for the timing of responses
requesting vacatur clearly indicates the Legislature’s intent to
remove a class of cases from the court’s fundamental jurisdiction.
Section 1288.2 speaks only to obligations of the litigants and
makes no reference at all to the power of the courts—in other
12
words, the section reads as an ordinary statute of limitations.”
(Law Finance, supra, 14 Cal.5th at pp. 946-947, 950.)
By contrast, in Kabran, supra, 2 Cal.5th at page 342, the
Supreme Court held Code of Civil Procedure sections 657, 659,
and former section 660, which govern when and how a party may
litigate a motion for new trial, affect a trial court’s fundamental
jurisdiction. The court explained, “Not only is a party’s attempt
to file a notice of intent [to move for a new trial] after the
relevant deadline invalid, but the court has no power to issue a
ruling on the basis of an untimely filed notice or on a ground not
set forth in the statute.” (Kabran, at p. 342.) Nor does a trial
court have jurisdiction to grant a motion for new trial after
expiration of the statutory time for deciding a motion for new
trial. (Id. at p. 337; accord, Siegal v. Superior Court of Los
Angeles County (1968) 68 Cal.2d 97, 101 [“[t]he time limits of
section 660 are mandatory and jurisdictional”].)
The Supreme Court in Kabran explained that indicia of
legislative intent to make a deadline jurisdictional, thereby
overcoming the presumption deadlines generally are not, include
where “‘“a consequence or penalty is provided for failure to do the
act within the time commanded.”’” (Kabran, supra, 2 Cal.5th at
p. 343.) Courts have also “looked to whether the consequences of
holding a time limitation mandatory or jurisdictional ‘would
defeat or promote the purpose of the enactment.’” (Ibid.) The
court held Code of Civil Procedure section 659 and former
section 660 “include such clear markers of legislative intent that
their respective deadlines are jurisdictional.” (Kabran, supra,
2 Cal.5th at p. 344.) Code of Civil Procedure former section 660
expressly stated “‘the power of the court to rule on a motion for a
new trial shall expire 60 days from”’ the filing of the notice of
13
intent or service of notice of entry of judgment, and further, “‘[i]f
such motion is not determined within said period of
60 days, . . . the effect shall be a denial of the motion without
further order of the court.’” 8 (Kabran, at p. 344.) By contrast,
Code of Civil Procedure section 659a, which provides that either
party “shall serve” and file any brief, affidavits, and supporting
documents within 10 days of filing the party’s intent to move for
a new trial, is not jurisdictional because there is no
“‘“consequence or penalty”’” in the section for noncompliance with
the filing deadline, and “nothing that suggests a legislative intent
to deprive courts of jurisdiction to consider affidavits filed outside
of the specified time limits.” (Kabran, at pp. 344-345.)
The language in Labor Code section 5909 is similar to Code
of Civil Procedure former section 660 (and stands in contrast to
Code of Civil Procedure section 659a) in including the deemed-
denied language as a “‘“consequence . . . for failure to do the act
within the time commanded.”’” (Kabran, supra, 2 Cal.5th at
p. 343.) However, unlike former section 660, Labor Code
section 5909 does not contain language making explicit that “the
power of the court to rule on a motion for a new trial shall expire”
beyond a set deadline. Nonetheless, the Supreme Court has held
that statutory provisions stating that petitions or other requests
to an agency are deemed denied by a specified date limit an
agency’s jurisdiction, and decisions made after the deadlines are
void as in excess of jurisdiction. For example, in Bonnell v.
Medical Board (2003) 31 Cal.4th 1255, 1259 the Supreme Court
8 Although Kabran considered the 60-day deadline in Code of
Civil Procedure former section 660, effective January 1, 2019, the
deadline was extended to 75 days. (Stats. 2018, ch. 317 (A.B.
2230), § 1, eff. Jan. 1, 2019.)
14
considered Government Code section 11521, subdivision (a),
which authorizes a state agency to order reconsideration of its
own administrative adjudication within 30 days, with up to a 10-
day stay of the deadline if necessary for the agency to evaluate a
petition for reconsideration. Government Code section 11521,
subdivision (a), provides further, similar to Labor Code
section 5909, that “[i]f no action is taken on a petition within the
time allowed for ordering reconsideration, the petition shall be
deemed denied.” The Supreme Court held “section 11521(a) is
unambiguous and allows a maximum 10-day stay for agency
review of an already filed petition for reconsideration. As a
result, the Board’s decision to order a reconsideration [after the
expiration of the 10-day stay] is void for lack of jurisdiction.”
(Bonnell, at p. 1265, italics added.) In reaching its conclusion,
the court relied on its prior holding in American Federation of
Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017,
1042 that “[a]n administrative agency must act within the powers
conferred upon it by law and may not act in excess of those
powers. [Citation.] Actions exceeding those powers are void, and
administrative mandate will lie to nullify the void acts.”
Further, as the Supreme Court explained in People v.
Chavez (2018) 4 Cal.5th 771, 780, footnote omitted, “Even when
there’s no question that a court’s action is well within the scope of
its fundamental jurisdiction, the court may still exceed
constraints placed on it by statutes, the Constitution, or common
law. [Citation.] When a trial court fails to act within the manner
prescribed by such sources of law, it is said to have taken an
ordinary act in excess of jurisdiction. [Citation.] Such ‘ordinary’
jurisdiction, unlike fundamental jurisdiction, can be conferred by
the parties’ decisions—such as a decision not to object to any
15
perceived deficiency—and so is subject to defenses like estoppel,
waiver, and consent.” The Chavez court considered whether the
trial court had authority under Penal Code section 1385 to
dismiss an action in furtherance of justice after a defendant had
completed probation, concluding that “[d]espite having
fundamental jurisdiction, the court acts in excess of its
jurisdiction, as conferred by section 1385, if it dismisses an action
under that section that is no longer pending.” (Chavez, at p. 787.)
The Supreme Court’s decision in J.M. v. Huntington Beach
Union High School Dist. (2017) 2 Cal.5th 648, 652 (J.M.),
addressing the deadline in the Government Claims Act (Gov.
Code, § 810 et seq.) for an injured party to file an application
under Government Code section 911.4 for relief from the deadline
for filing a claim against a public entity, is on point. Government
Code section 911.6, subdivision (c), provides that “[i]f the board
[of the public entity] fails or refuses to act on an application
within the time prescribed by this section, the application shall
be deemed to have been denied on the 45th day . . . .” (Id.,
§ 911.6, subd. (c).) The Supreme Court held that where the
public entity failed to act on a minor claimant’s claim within
45 days, “by operation of law, [the minor’s] application was
deemed denied on December 8, 2012” (the 45th day after the
claim was presented). The court explained, “A minor is ordinarily
entitled to relief upon a timely application under
section 911.6(b)(2). We do not suggest it would be proper for an
entity to routinely ignore late claim applications and resort to the
‘deemed . . . denied’ provision of section 911.6(c) as a default
procedure. Such applications should normally be reviewed and
acted upon. But an entity may ‘fail[] or refuse[] to act’ for a
variety of reasons.” (J.M., at p. 653.) The court elaborated, “The
16
timeliness of the application may be questionable due to
uncertainty over when the cause of action accrued. The
applicant’s status as a minor during the relevant period may be
disputable. The entity may have been unable to complete its
investigation within the allotted time. The entity might also
simply fail to act on an application through inadvertence. In all
circumstances, a late claim application is deemed denied after
45 days, even though section 911.6(b)(2) would entitle the minor
to relief if the application had merit.[9] By placing this limitation
on the entity’s time to act, the Legislature ensured that
applications would not languish.” (Id. at p. 653; footnote
omitted.)
Moreover, the government claims statutory scheme at issue
in J.M., like the workers’ compensation procedure for Board
review, provides a remedy if the public entity denies the
application or fails to act, allowing the applicant six months to
seek relief in the superior court from denial of the application to
file a late claim. (Gov. Code, § 946.6, subd. (b).) The minor
claimant in J.M. missed the six-month deadline for seeking relief
in the superior court from the school district’s deemed denial of
his application to file a late claim. (J.M., supra, 2 Cal.5th at
p. 651.) The Supreme Court rejected the claimant’s argument he
was entitled to yet another extension of time, explaining “the
statutes provide no recourse for counsel’s failure to petition the
court within six months of the deemed denial of J.M.’s late claim
application.” (J.M., at p. 656; see Pineda v. Williams-Sonoma
Stores, Inc. (2011) 51 Cal.4th 524, 529, fn. 5 [Supreme Court’s
9 If the applicant was a minor during the entire time for
presentation of a claim, the public entity “shall” grant the
application. (Gov. Code, § 911.6, subd. (b)(2).)
17
grant of review under California Rules of Court, rule 8.512(b)(2),
which provides a party’s petition for review of an appellate
opinion is “deemed denied” if the Supreme Court does not rule on
the petition within 60 days after the last petition for review is
filed or within 90 days if the deadline is extended, “was within
this court’s jurisdiction” where a nunc pro tunc order correcting a
clerical error extended the time for review so the grant of review
was within the 90-day time period].)
2. The Board acted in excess of its jurisdiction in
granting CIGA’s petition for reconsideration after the
petition was deemed denied under section 5909
As discussed, section 5909 provides, “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.” We review the interpretation of section 5909 de novo.
(Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 658; Smith
v. Workers’ Comp. Appeals Bd. (2009) 46 Cal.4th 272, 277 [“We
independently review the construction of workers’ compensation
statutes.”].)
We agree with our colleagues in Earley, supra,
94 Cal.App.5th at page 12 that section 5909 does not require the
Board to issue a final ruling on a petition for reconsideration
within 60 days. Rather, section 5906 envisions that the Board
may grant a petition for reconsideration and rule based on the
evidence previously submitted in the case or elect to grant
reconsideration and then “direct the taking of additional
18
evidence.” 10 (Earley, at p. 13, italics omitted.) And section 5908.5
requires the Board to state what evidence it relies on and the
reasons for its decision—both in granting or denying a petition
for reconsideration, and in its final decision affirming, rescinding,
altering, or amending the initial findings or order. 11 (See Earley,
at p. 13.) But the plain language of section 5909 and its
legislative history make clear what the Board cannot do—ignore
the 60-day deadline and then rule on the petition for
reconsideration—because after 60 days, the Board no longer has
jurisdiction to consider the petition.
a. The statutory language
Section 5909 specifies a consequence for failure of the
Board to act within 60 days—the petition for reconsideration is
deemed denied. As discussed, the Supreme Court has found
similar deadlines are jurisdictional, whether for lack of
fundamental jurisdiction (Kabran, supra, 2 Cal.5th at p. 344) or
10 Section 5906 provides, “Upon the filing of a petition for
reconsideration, or having granted reconsideration upon its own
motion, the appeals board may, with or without further
proceedings and with or without notice affirm, rescind, alter, or
amend the order, decision, or award made and filed by the
appeals board or the workers’ compensation judge on the basis of
the evidence previously submitted in the case, or may grant
reconsideration and direct the taking of additional evidence.”
11 Section 5908.5 provides, “Any decision of the appeals board
granting or denying a petition for reconsideration or affirming,
rescinding, altering, or amending the original findings, order,
decision, or award following reconsideration shall be made by the
appeals board . . . and shall state the evidence relied upon and
specify in detail the reasons for the decision.”
19
where an agency acts in excess of its jurisdiction (Bonnell v.
Medical Board, supra, 31 Cal.4th at pp. 1259-1260). By contrast,
statutory deadlines the Supreme Court has found not to affect a
court’s or administrative agency’s jurisdiction generally set time
limits but not a consequence for the failure to act by the deadline.
(See, e.g., Kabran, supra, 2 Cal.5th at p. 343 [10-day limit in
Code of Civil Procedure section 659a has no consequence or
penalty, and therefore does not implicate court’s fundamental
jurisdiction]; California Correctional Peace Officers Assn. v. State
Personnel Bd. (1995) 10 Cal.4th 1133, 1137-1138, 1148
[Government Code section 18671.1’s deadlines for the State
Personnel Board to render a decision following a hearing or
investigation of a state employee’s appeal from a departmental
disciplinary hearing are not jurisdictional because there is no
“statutory penalty or consequence which clearly reflects
legislative intent to deprive the Board of further jurisdiction over
an employee appeal and thereby invalidate future actions
whenever the Board fails to render a timely decision”].)
b. The legislative history
The legislative history also supports a finding section 5909
limits the Board’s jurisdiction. In 1911, in response to a “public
clamor . . . for reform of the laws relating to recovery for injuries
received at work,” the Legislature enacted the Roseberry Act,
establishing a voluntary system of workers’ compensation that
provided compensation for employees’ injuries without regard to
negligence, in lieu of other forms of liability. (Mathews v.
Workers’ Comp. Appeals Bd. (1972) 6 Cal.3d 719, 728-729; see
Stats. 1911, ch. 399, §§ 1, 3, p. 796.)
20
Under the Roseberry Act, the industrial accident board
heard and decided employee applications for compensation, made
findings, and issued awards determining the rights of the parties.
(Stats. 1911, ch. 399, §§ 15, 16, p. 803.) An aggrieved party could
only obtain review of the board’s findings and award by filing an
application for review within 30 days of the date of the award,
which would be considered by the superior court. (Id., § 18,
p. 804.) But there was no deadline for the superior court to
confirm or set aside the board’s findings and award. Once the
superior court made a decision, however, an aggrieved party
could appeal the judgment to the Supreme Court in the same
time and manner as other appeals from the superior court. (Id.,
§ 20, p. 804.) Thus, while the Roseberry Act provided for a
streamlined no-fault system, the board had no deadline for
issuing its award, and the initial review of the award was by the
superior court with no deadline for a decision.
Shortly after the Roseberry Act became effective, voters
approved the addition of section 21 to article XX of the
Constitution, authorizing establishment of a compulsory workers’
compensation system that would make employers liable for
paying compensation to their employees for injuries incurred
during the course of their employment “‘irrespective of the fault
of either party.’” (Mathews v. Workers’ Comp. Appeals Bd., supra,
6 Cal.3d at p. 730, italics omitted; see Cal. Const., former art. XX,
§ 21.) Former article XX, section 21 of the Constitution, as
amended in 1918 (now found in article XIV, section 4) 12 specified
12 In 1976 Article XX, section 21 was repealed as part of a
constitutional reorganization, and its provisions were adopted as
21
the goal of any workers’ compensation system that “the
administration of such legislation shall accomplish substantial
justice in all cases expeditiously, inexpensively, and without
incumbrance of any character.” In response to the constitutional
amendment, the Legislature in 1913 enacted the first compulsory
workers’ compensation system, with provisions similar to those
that govern workers’ compensation proceedings today. (Mathews,
at p. 730; Great Western Power Co. v. Industrial Accident
Commission (1925) 196 Cal. 593, 602; see Stats. 1913, ch. 176,
pp. 279-320.) The Boynton Act, officially known as the
Workmen’s Compensation, Insurance, and Safety Act, created an
“industrial accident commission, providing for its organization,
defining its powers and duties and providing for a review of its
orders, decisions and award.” (Stats. 1913, ch. 176, preamble,
p. 279, italics partially omitted.)
In contrast to the Roseberry Act, the Boynton Act required
the industrial accident commission (commission) to issue its
findings and award within 30 days of the hearing. (Stats. 1913,
ch. 176, § 25, p. 292). The commission could appoint referees to
hear matters and report their findings and conclusions to the
commission within 20 days. (Id., § 76, subds. (a), (b) & (e),
pp. 312-313.) However, a single commissioner’s or a referee’s
finding, order, decision, or award could only be deemed a decision
of the commission if approved and confirmed by a majority of the
members of the commission. (Id., § 4, pp. 280-281.)
article XIV, section 4. (Pacific Legal Foundation v. Brown (1981)
29 Cal.3d 168, 184, fn. 8.)
22
Significantly, the Boynton Act replaced the Roseberry Act’s
procedure for review by the superior court with a procedure for
an aggrieved party to file a petition for a rehearing (now called a
petition for reconsideration) 13 of the commission’s decision within
specified deadlines. Sections 81 and 82 allowed any person
aggrieved by the commission’s final decision to apply to the
commission for a rehearing within 20 days of the final order or
decision of the commission. (Stats. 1913, ch. 176, §§ 81, subd. (a),
82, subd. (a), pp. 315-317.) Section 81, subdivision (f), provided
further that “[a]n application for a rehearing shall be deemed to
have been denied by the commission unless it shall have been
acted upon within thirty days from the date of filing; provided,
however, that the commission may upon good cause being shown
therefor, extend the time within which it may act upon such
application for rehearing for not exceeding thirty days.” (Id.,
§ 81, subd. (f), p. 317.) The act also created a procedure for
judicial review of a denial of a petition for rehearing (or a decision
following a grant of rehearing), allowing an aggrieved party to
file a petition for a writ of review in the Court of Appeal or the
Supreme Court within 30 days of the denial of the petition or the
decision following a grant. (Id., § 84, subd. (a), p. 318.)
A Report of the Industrial Accident Commission on the
status of the Boynton Act through June 30, 1914 addressed “[o]ne
[c]rucial [i]ssue” that was “fundamentally important to the
successful operation” of the Boynton Act. The report rejected the
position of the workers’ compensation bar that attorneys should
be able to present their cases in the same manner they could
13 In 1951 the term “rehearing” was replaced with
“reconsideration” as part of an amendment to former
section 5909. (Stats. 1951, ch. 778, p. 2270, § 25.)
23
before a court, explaining, “It is better for the state and for the
people of the state that what may be termed ‘average justice’
shall be speedily and inexpensively administered than exact
justice shall be striven for at a cost that, in many cases, would
consume the entire amount involved and leave the applicant
indebted for costs and expenses besides. [¶] . . . In short, it is
the purpose of the Commission to afford an object lesson as to
how to determine issues of minor consequence with reasonable
certainty and without delay or burdensome expenditure.” (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.)
In 1937 the Labor Code was enacted, including former
section 5909, which incorporated the deadline in section 81,
subdivision (f), of the Boynton Act in substantially the same form.
(Stats. 1937, ch. 90, § 5909, p. 304; see Stats. 1913, ch. 176, § 81,
subd. (f), pp. 316-317.) Likewise, the provision in section 84,
subdivision (a), of the Boynton Act for an aggrieved party to file a
petition for a writ of review within 30 days of a denial or decision
on a petition for rehearing, was codified in Labor Code former
section 5950. (Stats. 1937, ch. 90, § 5950, p. 304; see Stats. 1913,
ch. 176, § 84, subd. (a), p. 318.)
In 1965, the administrative and judicial functions of the
commission were separated, with authority over judicial
functions placed in the newly created Workers’ Compensation
Appeals Board. (Stats.1965, ch. 1513, §§ 5, 7, pp. 3556-3557.) 14
14 The 1965 legislation created the Workmen’s Compensation
Appeals Board (Stats. 1965, ch. 1513, § 5, p. 3356.). In 1981 the
Board’s name was changed to the “Workers’ Compensation
Appeals Board.” (Stats. 1981, ch. 21, § 2, p.46.).
24
Then, in 1978 the 30-day deadline in section 5950 was extended
to 45 days. (Stats.1978, ch. 661, § 1, p. 2123.) And in 1992 the
Legislature modified section 5909 to include the current 60-day
deadline after which a petition for rehearing is “deemed to have
been denied.” (Stats. 1992, ch. 1226, § 5909, p. 5766.)
c. The language, structure, and history of the
Workers’ Compensation Act show the
Legislature’s intent that the Board no longer
has jurisdiction to decide a petition for
reconsideration after 60 days
As the language of section 5909 and legislative history
show, the Legislature, in enacting the workers’ compensation
system, has adhered to the Constitutional goal that the system
“accomplish substantial justice in all cases expeditiously,
inexpensively, and without incumbrance of any character.” (Cal.
Const., art. XIV, § 4.) As discussed, the Boynton Act, in contrast
to the prior voluntary program under the Roseberry Act, required
the commission to issue its findings and award within 30 days of
the final hearing (§ 25, subd. (a) (now Labor Code § 5313));
provided for review by the commission by filing a petition for
rehearing (§ 82, subd. (a) (now a petition for reconsideration
under Labor Code § 5900)); provided the “deemed to have been
denied” language for a failure of the commission to act on the
petition (§ 81, subd (f)) (now in Labor Code § 5909)); and provided
for the filing of a petition for judicial review by a specified
deadline (§ 84, subd (a) (now in Labor Code § 5950)). Moreover,
the Legislature streamlined the procedure to make the findings
of a single commissioner or referee enforceable as a decision of
25
the commission (former § 115, now in § 5310). 15 Further, as the
commission’s 1914 report highlights, the workers’ compensation
system is designed 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.
(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 Legislature struck that
balance in providing finality to the decision of the workers’
compensation judge, setting time limits in which the Board may
review a petition for reconsideration, and, upon expiration of
those limits, providing the parties with access to judicial review.
The structure of the review process supports this reading of
statute. Under the current statutory scheme, sections 5909 and
5950 work in tandem, providing certainty in section 5909 as to
when the deadline for seeking judicial review under section 5950
commences. Absent an interpretation of 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 section 5909 or months or years later
when the Board acts on the petition. Moreover, as the Supreme
Court explained in J.M., supra, 2 Cal.5th at page 653 in the
15 Whereas section 4 of the Boynton Act required the
commission approve and confirm the commissioner’s or referee’s
findings and conclusions for a decision to be enforceable, Labor
Code section 5310 now provides that the Board may appoint
workers’ compensation administrative law judges, who have “the
powers, jurisdiction, and authority granted by law, by the order
of appointment, and by the rules of the appeals board.”
26
context of Government Code section 911.6, subdivision (c), “[b]y
placing this limitation on the entity’s time to act, the Legislature
ensured that applications would not languish.” A similar
construction here is most consistent with the Constitutional
directive for the workers’ compensation system to accomplish
substantial justice expeditiously and inexpensively. (Cal. Const.,
art, XIV, § 4.)
The Supreme Court’s decision in Evans v. Workers’ Comp.
Appeals Bd. (1968) 68 Cal.2d 753 is consistent with our reading
of section 5909. In Evans, the court held that the Board, in
vacating a trial referee’s decision granting an employee’s petition
to reopen his workers’ compensation claim, did not comply with
section 5908.5 because the Board failed to state the reasons for
its decision or the evidence it relied upon. (Evans, at pp. 754-
755.) The Supreme Court annulled the Board’s decision,
requiring the Board to issue a new decision that complied with
section 5908.5, observing the Board “retains jurisdiction, having
granted reconsideration within the 30-day period set forth in
[former section 5909].” (Evans, at p. 755.)
In United States Pipe & Foundry Co. v. Industrial Acc.
Com. (1962) 201 Cal.App.2d 545, 546, the Court of Appeal
similarly concluded the 60-day limit in former section 5900 for
the commission to grant reconsideration on its own motion of an
order, decision, or award made by a workers’ compensation judge
“permit[s] no other conclusion than that the time limitation is
jurisdictional.” (United States Pipe, at p. 549.) The court
explained, “The statutory prescription of the period in which to
apply for reconsideration and for the finality of the commission’s
orders in the absence of such request has led the courts to rule
that the commission lacked the power to grant an untimely
27
petition for reconsideration.” (Id. at p. 549; accord, Argonaut Ins.
Co. v. Workmen’s Comp. App. Bd. (1967) 247 Cal.App.2d 669, 673-
674 [where the Board fails to act on a petition within 30 days
under section 5909, the petition is deemed “denied by operation of
law,” and “further action of the board affecting a previous award
exceeds its powers”]; 16 see Rymer v. Hagler (1989) 211 Cal.App.3d
1171, 1182 [“Upon the expiration of time for reconsideration
[under section 5903], the decision of the [workers’ compensation]
judge was final and conclusive.”].)
Accordingly, the Board acted in excess of its jurisdiction in
granting CIGA’s petition after the petition was deemed denied
under section 5909. 17 As we discuss below, no exception applied
to extend the Board’s jurisdiction.
16 As the Court of Appeal explained in Argonaut, supra,
247 Cal.App.2d at pages 675 to 676, the fact the Board lacks
jurisdiction to consider a motion for reconsideration once it is
deemed denied under section 5909 does not prevent the Board
from considering a motion to reopen a workers’ compensation
case under section 5803, which upon a showing of good cause
permits the Board to “rescind, alter, or amend any such order,
decision, or award,” subject to a five-year limitation in
section 5804 for altering compensation awards.
17 The parties do not address whether the failure of the Board
to act on a petition for reconsideration within 60 days was not
only in excess of the Board’s jurisdiction but also affected the
Board’s fundamental jurisdiction to consider the petition. Where
a deadline affects a court’s fundamental jurisdiction, this
“implicates ‘the basic power of a court to act,’” and therefore,
“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.” (Law
28
3. Any exception under Shipley to the deadline for the
Board to act on a petition for reconsideration must be
limited to where the petitioner acts diligently and the
Board’s misleading conduct deprives a petitioner of
administrative or judicial review
The Board contends it retained jurisdiction to consider
Zurich’s petition pursuant to an exception carved out by Shipley,
supra, 7 Cal.App.4th at page 1108 where a party would otherwise
“be deprived of a substantial right without notice.” We disagree
with the conclusion in Shipley that a petitioner has a due process
right to review by the Board of a petition for reconsideration even
after 60 days has passed, given section 5909’s clear language that
if the Board has not acted on a petition for reconsideration within
60 days, it is deemed denied (but affording judicial review under
section 5950). Indeed, as the Supreme Court observed in
LeVesque v. Workmen’s Comp. App. Bd. (1970) 1 Cal.3d 627, 635,
the Board may “simply by pocket denial dispose of cases under
section 5909,” that is, the Board may resolve an appeal by not
Finance, supra, 14 Cal.5th at p. 950; see Kabran, supra, 2 Cal.5th
at p. 342.) The Supreme Court in Law Finance, after holding the
filing deadline under Code of Civil Procedure section 1288.2 did
not affect the court’s fundamental jurisdictional, applied the
equitable tolling analysis set forth in Saint Francis Memorial
Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710, 719-
720, and concluded equitable tolling applied to the deadline.
(Law Finance, at p. 956.) We do not resolve this issue because
even if the Board retained fundamental jurisdiction but acted in
excess of its jurisdiction by purporting to decide CIGA’s petition
after it was deemed denied under section 5909, as we discuss
below, equitable principles do not support the Board’s position.
29
acting on the petition within 60 days despite the lack of any
substantive consideration. But even if Shipley is read to allow
some form of equitable tolling to extend the deadline in 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, we
reject the Board’s position the deadline may be extended any time
the Board fails to act due to deficiencies in the administrative
process. 18
In Shipley, an applicant for workers’ compensation benefits
(Marshall Shipley) on July 19, 1990 timely filed a petition for
reconsideration of an unfavorable decision. (Shipley, supra,
7 Cal.App.4th at p. 1106.) In late August or September, Shipley
inquired about the status of his petition and learned from the
Board’s chief clerk that the file “had been inadvertently sent to
‘Archives.’” (Ibid.) After further inquiry and the passage of
several more months, the chief clerk told Shipley the office policy
was to request the file a second time before allowing a duplicate
file to be prepared. (Ibid.) After several more months, the Board
allowed Shipley to reconstruct a duplicate file, which the Board
sent to its rehearing unit. (Id. at p. 1107.) On September 26,
1991, well over a year after Shipley had filed his petition, the
18 Although the Board argues Shipley allows “tolling” of the
60-day deadline, the Shipley court did not address equitable
tolling or other equitable principles, although it focused on the
unfairness to Shipley and concluded that denial of Shipley’s
petition after the Board lulled him into believing the Board would
take action “makes no sense.” (Shipley, supra, 7 Cal.App.4th at
p. 1108.)
30
Board issued an order stating the petition was deemed denied by
operation of law under section 5909. (Shipley, at p. 1107.)
The Court of Appeal reversed the Board’s order, reasoning
with respect to the deadline set by section 5909, “While this
language 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. We
emphasize Shipley’s file was lost or misplaced through no fault of
his own and due to circumstances entirely beyond his control.
Surely the Legislature did not write the statute in anticipation of
a system so inefficient that such gaffes were statutorily provided
for.” (Shipley, supra, 7 Cal.App.4th at p. 1107.)
The Shipley court relied on State Farm Fire & Casualty Co.
v. Workers’ Comp. Appeals Bd. (1981) 119 Cal.App.3d 193, which
considered an untimely petition for appellate review under
section 5950. (See Shipley, supra, 7 Cal.App.4th at p. 1108.) The
State Farm court held the Board’s failure to provide notice of its
order denying a petition for reconsideration excused the
petitioner’s late filing of a petition for review with the Court of
Appeal under section 5950. (State Farm, at p. 197.) Although
the State Farm court observed the 45-day time period under
section 5950 for filing a petition for a writ of review in the Court
of Appeal was jurisdictional, the court reasoned the Board’s
failure to provide notice of its ruling on the petition for
reconsideration deprived the petitioner of his statutory right to
judicial review, which would “offend elementary due process
principles.” (State Farm, at pp. 195-197.) The court concluded
the statutory period in which review could be sought, therefore,
31
“must be deemed to commence with the receipt of notice.” (Id. at
p. 197.)
Even if an exception to the 60-day deadline in section 5909
may be carved out based on equitable principles, any exception
must be limited to the circumstances, as in Shipley, where 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,
thereby depriving the claimant of review by the Board (and
potentially any judicial review). 19
The Board concedes CIGA made no inquiries of the Board
prior to the expiration of the 60-day period on the status of its
petition. Although petitioners are not responsible for deficiencies
in the workers’ compensation appeals process, experienced
workers’ compensation insurers such as CIGA (and its attorneys)
are well aware of the delays in the process and the likelihood that
a petition may be denied by operation of law if the Board does not
receive the petition or the arbitration record. Yet CIGA took no
action for nine months following the filing of its petition to
inquire as to the status of its petition. 20
19 We note that under our construction of section 5909, the
45-day clock for filing a petition for a writ of review will
commence once the 60-day deadline passes (or when the Board
grants or denies the petition, if earlier). Thus, a claimant risks
losing the right to petition for review under section 5950 if the
claimant waits for notice of the Board’s action (or inaction) before
filing a petition for a writ of review where the 60-day deadline
has passed.
20 The Board asserts that if petitioners had to contact the
Board to inquire of the status of their cases, the “Board’s already
32
And more importantly, CIGA had a remedy even after its
petition for reconsideration was denied by operation of law on day
60: It could have filed a petition for a writ of review with the
Court of Appeal or the Supreme Court under section 5950
challenging the arbitrator’s decision, so long as CIGA filed its
petition within 45 days of the Board’s order denying its petition
for reconsideration (that is, within 45 days of denial of its petition
by operation of law). Had CIGA protected its rights by filing a
timely petition for a writ of review, the appellate courts would
have had jurisdiction to consider alleged errors in the arbitrators’
decision. 21 CIGA failed to take advantage of this remedy,
over-burdened administrative staff and attorneys would be
overrun by the resulting flood of telephone calls, letters, and e-
mails.” Although we recognize the administrative challenges
facing the Board, the suggestion that petitioners should not
protect their rights because this would burden the Board’s
administrative staff and attorneys is troubling. And, as Zurich
points out, the Board could request additional funding from the
Legislature to remedy the deficiencies in the appeals process and
handle the Board’s increasing caseload.
21 The Board argues judicial review is not an adequate
substitute for review by the Board, which has authority to take
additional evidence and make credibility findings. (See § 5906
[upon filing of a petition for reconsideration, the Board “may
grant reconsideration and direct the taking of additional
evidence”]; Lamb v. Workmen’s Comp. Appeals Bd. (1974)
11 Cal.3d 274, 280-281 [the Board may “make its own credibility
determinations” and “resolve conflicts in the evidence,” as long as
its decision is supported by substantial evidence in light of the
entire record].) Although the administrative review process is
more comprehensive than judicial review, it was the Legislature
that created the ability for an aggrieved party to file a petition for
33
rendering the arbitrator’s decision dismissing Zurich final.
Accordingly, it was CIGA’s own inaction that denied it a
remedy. 22 Indeed, CIGA does not argue the Board’s conduct
deprived it of an opportunity to seek appellate review, nor does it
seek leave in this proceeding to file an untimely petition for a
writ of review.
By contrast, in Shipley, the Board’s misleading conduct in
lulling Shipley into believing it would act on his petition as soon
as it found his case file or the file was reconstructed (in response
to Shipley’s repeated inquiries) affected Shipley’s ability to
protect his rights. Shipley continued to believe the Board would
act on his petition for reconsideration, well past the time when
the petition was denied by operation of law and after the deadline
reconsideration (§ 5900) and specified that the petition is deemed
denied if it is not acted upon within 60 days (§ 5909). Thus, the
Legislature was well aware that if the Board takes no action
within 60 days, the remaining judicial review would be more
limited.
22 Moreover, as the Court of Appeal in Saint Francis
Memorial Hospital v. State Department of Public Health (2021)
59 Cal.App.5th 965, 969 explained on remand from the Supreme
Court, Saint Francis’s failure to file a timely request for
reconsideration was not objectively reasonable “because it is not
objectively reasonable for an attorney to miss a deadline to file a
petition due to a failure to appreciate easily ascertainable legal
principles. Thus, although we sympathize with Saint Francis’s
counsel and recognize it is easy to make such mistakes, we must
again affirm the trial court’s judgment.” Here too, an aggrieved
party, even a self-represented employee, has the ability to
calculate when the 60-day period runs under section 5909, as well
as the 45-day deadline for filing a petition for review under
section 5950.
34
for filing a timely petition for a writ of review of that denial had
passed. 23
Finally, as Zurich points out, it too has a legitimate interest
in the finality of the arbitrator’s decision. As discussed, the
California Constitution requires the workers’ compensation
system to accomplish substantial justice “expeditiously” and
“inexpensively.” (Cal. Const., art. XIV, § 4.) Section 5909
furthers that purpose by imposing a limit of 60 days on the
Board’s jurisdiction to grant a petition for reconsideration,
thereby ensuring the expeditious adjudication of a claim without
allowing the open-ended extension the Board champions here.
DISPOSITION
We issue a peremptory writ of mandate directing the
Workers’ Compensation Appeals Board to rescind its June 13,
2022 order granting CIGA’s petition for reconsideration and its
August 8, 2022 opinion and decision after reconsideration. We
further direct the Board to order the dismissal of Zurich as a
defendant based on the denial of CIGA’s petition for
23 The Board argues the doctrine of impossibility tolled the
60-day deadline because the Board could not have acted on
CIGA’s petition during that period given its lack of awareness the
petition had been filed, relying on language in National Shooting
Sports Foundation, Inc. v. State of California (2018) 5 Cal.5th
428, 433 that “courts have excused compliance with a statute of
limitations where timely compliance was impossible.” As
discussed, section 5909 is not a statute of limitations, and
further, section 5909 did not require the Board to act within
60 days—it only specified the consequences if it did not.
35
reconsideration by operation of law under section 5909. Zurich is
to recover its costs in this proceeding.
FEUER, J.
We concur:
SEGAL, Acting P. J.
MARTINEZ, J.
36