Use this button to switch between dark and light mode.

California: How to File a Recon of an Appeals Board Decision So It Doesn’t Get Lost in Space

November 14, 2024 (15 min read)

By Hon. Colleen Casey, Former Commissioner, California Workers’ Compensation Appeals Board

It’s a problem. Petitions for Reconsideration (Recon) are losing their way and delaying their arrival at the Appeals Board. When the WCAB Commissioners fail to review a Recon within the 60-day time limit imposed by Lab. Code § 5909, the Recon is automatically denied, regardless of the validity of their arguments.

I. Reliance on “Equitable Tolling” Has Avoided Draconian Results

In the past, this draconian result was remedied by the concept of “equitable tolling” as explained in the case of Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].

This process worked well until recently when the 1st and 2nd District Courts of Appeal held that the law is the law and there are no ways around it. (See Zurich v. Workers’ Comp. Appeals Bd. (2023) 97 Cal.App.5th 1213 [316 Cal. Rptr. 3d 264] 2nd DCA (“Zurich”), and Mayor v. Workers’ Compensation Appeals Bd. (2024) 104 Cal.App.5th 713 [2024 Cal.App. LEXIS 531] (“Mayor”) 1st DCA.)

II. LC §5909(a) Was Amended to Alleviate the Problem

The easy solution? Change the law. Done.

Urgency legislation was enacted, effective as of 7/1/2024. Lab. Code § 5909(a) now requires the Commissioners of the Appeals Board issue a decision on a Recon within 60 days “from the date a trial judge transmits a case to the appeals board,” (as opposed to the date when the Recon arrives at the District Office). The timeframe isn’t triggered until the trial judge (WCJ) physically transmits the case file to the Appeals Board, along with their “Report and Recommendation” (R&R) in response to the Recon.

III. But What Happens When No R&R Exists?

This amended law helped, but its practice was dependent on the existence of an R&R. What if there is no R&R? What if the petitioner is aggrieved by a decision of the Commissioners of the Appeals Board and not by that of a WCJ? In that case, there would no trial judge’s R&R to transmit to the WCAB. In that event, how does the document get delivered to the eyes of the Commissioners for a meaningful review?

The WCAB answered this in the recent Noteworthy Panel Decision (NPD) of Hall v. DHL Express, 2024 Cal. Wrk. Comp. P.D. LEXIS 336, as follows:

(1) Aggrieved parties must file their Recons from an Appeals Board decision directly with the Appeals Board as required by law. (Explanation as to how to do this is set forth below.);

(2) If a Recon still does not arrive within the 60-day timeframe of Lab. Code § 5909(a), then, if appropriate, the Commissioners may rely on Shipley, supra, to justify use of the “equitable tolling” concept to preserve the rights of due process for all. (Full explanation included below. The “template” used by the Commissioners to explain the rationale for this is also reproduced below.*)

IV. Organization Chart for the Department of Industrial Relations

The workers’ compensation system can be a challenge for even the brightest minds to navigate. All workers’ compensation adjudication originates at the level of one of the 23 district offices throughout the State of California.

The first step in understanding how the workers’ compensation inner sanctum works is to take a look at the Department of Industrial Relations (DIR) organizational chart found at: https://www.dir.ca.gov/org_chart/org_chart.pdf

At the top of the chart is the Director of DIR, Katrina Hagen. Directly under her are the various management Offices that keep the DIR running smoothly. Directly under the “Offices” are the various “Divisions” of the DIR, including the “Division of Workers’ Compensation” run by the Administrative Director, George Parisotto. The 23 local district offices of the WCAB, including the WCJs, are all under his authority. (See https://www.dir.ca.gov/dwc/dir2.htm.)

There are 8 boxes listed at the bottom of the chart, which are the various Boards and Commissions of the DIR, one of which is the Workers’ Compensation Appeals Board (WCAB) chaired by the Honorable Katherine Zalewski. (See https://www.dir.ca.gov/wcab/wcab.htm.)

V. The DWC (and Its District Offices) Are Separate from the WCAB Appeals Board

The Appeals Board (i.e., the WCAB commissioners) has delegated its judicial authority to the WCJs located in the DWC district offices to handle the trial load. Any party aggrieved by a decision of a WCJ is permitted to seek reconsideration of that decision from the Appeals Board. The “fire wall” between the WCJs at the DWC district offices and the WCAB Commissioners at the Appeals Board is necessary to maintain the integrity of the appellate process.

Complications arise when computers get involved. (Remember Hal from the movie 2001?) As explained in the Hall case,

The Appeals Board does not share an electronic file with the DWC District Office. There is one electronic adjudication file, which is ordinarily maintained by the DWC. “‘Electronic Adjudication Management System’ or ‘EAMS’ means the computerized case management system used by the Division of Workers' Compensation to electronically store and maintain adjudication files and to perform other case management functions. (Cal. Code Regs., tit. 8, § 10305(j) (emphasis added).)

When a Petition for Reconsideration or Removal had been filed, the adjudication case file may travel from a district office through EAMS to the WCAB Appeals Board. Once a decision has issued from the Appeals Board, the adjudication case file is then returned to the local DWC office. It is then placed “in control” of the WCJ who issued the original trial decision.

VI. If a Petition for Recon from an Appeal Board Decision Is Filed in EAMS at the Local DWC Office, It Is NOT Automatically Received by the Appeals Board

If a party does not follow that mandate of 8 CCR § 10940(a) to file their Recon from an Appeals Board decision, directly with the Appeals Board, and instead files it in EAMS at the local office, there’s a solid chance it might languish there until the deadline has lapsed for the Appeals Board to review the Recon. That is what happened in the Hall case (and a multitude of other cases). This puts the WCAB commissioners in a very difficult situation. They had two choices:

(1) Automatically allow the Recon to be denied without review, per the mandate of two DCA decisions, Zurich, supra and Mayor, supra; or

(2) Rely on the principle of “equitable estoppel” and follow their long-held decision in the Shipley, supra, case.

In the Hall case, the Appeals Board opted to preserve the parties’ right to due process. They applied the doctrine of “equitable tolling” and decided that the 60-day limitation period was tolled until they had received possession of the Recon. This allowed them an opportunity to meaningfully review the Recon and to respond with appropriate judicial discretion.

The WCAB’s extremely well-reasoned analysis for this decision is as follows:

The Mayor decision relies heavily upon the analysis in Zurich, which in turn, is based upon the Supreme Court’s analysis in J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 214 Cal. Rptr. 3d 494 [389 P.3d 1242]. (Zurich, supra, 97 Cal.App.5th at pp. 1229-1230.) That case dealt with application of a deemed denied provision in the Government Claims Act. The Supreme Court held that: “The doctrine of equitable tolling may also apply to the limitation periods imposed by the claims statutes.” (J.M., supra, 2 Cal.5th at p. 657.) That is, even where the Government Claims Act deemed an application denied, the Supreme Court found that equitable tolling can apply.

If the Legislature had intended to preclude equitable tolling or equitable estoppel, it could have done so expressly. (See, e.g., Code Civ. Proc., § 366.2, subd. (b) [providing a one-year statute of limitations for a surviving action against a deceased person and stating that the period “shall not be tolled or extended for any reason” except as specified in the statute]; Atwater Elementary School Dist. v. California Dept. of General Services, supra, 41 Cal.4th at p. 233 [“‘The Legislature could have easily stated it intended to abrogate long-established equitable principles [such as equitable estoppel]. It did not do so.’”].)

(Law Finance Group, LLC v. Key (2023) 14 Cal.5th 932 at pp. 953 [309 Cal. Rptr. 3d 796, 531 P.3d 326].), 14 Cal.5th at p. 953)

Similar to the statutes at issue in Law Finance Group, LLC, and J.M., supra, former section 5909 contains no express limitations on the application of tolling, and thus, following the reasoning of those decisions, section 5909 is subject to equitable tolling.

VII. Importance of Filing an Appeals Board Decision, Directly with the Appeals Board

As discussed above, when a party files their Recon with the local district office instead of at the office of the Appeals Board, the Recon will be considered timely, but there’s no guarantee it will be seen by the WCAB commissioners.

That is why following the rules is so important. The rule in this case is 8 CCR § 10940(a), which mandates that any party aggrieved by a decision of the WCAB commissioners must send their Recon from that decision directly to the Appeals Board.

The $64,000 question then is, how does the petitioner do this? There are several options.

(1) Parties may email their Recon to the Appeals Board's “Control Unit” at: ControlUnit@dir.ca.gov;

(2) They can mail their Petition for Recon of the WCAB decision to the “Control Unit” at:

Workers' Compensation Appeals Board
455 Golden Gate Avenue, 9th Floor
San Francisco CA 94102

(3) Parties are also permitted to hand-deliver their Recon to the above address.

Whichever method is chosen, it’s probably a good idea to confirm through the control unit email that the Recon of the WCAB decision has been received and is currently in line to be reviewed.

(Also, if a party accidentally files their Recon in EAMS by mistake, they can email the “Control Unit” at the email listed above, to ensure that the adjudication case file and Recon get transferred to the Appeals Board.)

VIII. Conclusion & Useful Template

Hopefully, understanding the importance of correctly filing a Recon from a decision of the Appeals Board directly WITH the Appeals Board will now result in fewer delays in response time, a situation that will benefit us all.

*The WCAB has been using the template below in over a dozen recent cases to explain why they relied on the concept of “equitable tolling” to issue a decision in a case where the Labor Code § 5909(a) 60-day deadline has not been met.

“Only the Appeals Board is statutorily authorized to issue a decision on a petition for reconsideration. (Lab. Code, §§ 112, 115, 5301, 5901, 5908.5, 5950; see Cal. Code Regs., tit. 8, §§ 10320, 10330.) The Appeals Board must conduct de novo review as to the merits of the petition and review the entire proceedings in the case. (Lab. Code, §§ 5906, 5908; see Lab. Code, §§ 5301, 5315, 5701, 5911.)

Once a final decision by the Appeals Board on the merits of the petition issues, the parties may seek review under Labor Code section 5950, but appellate review is limited to review of the record certified by the Appeals Board. (Lab. Code, §§ 5901, 5951.)

Former Labor Code section 5909 provided that a petition was denied by operation of law if the Appeals Board did not “act on” the petition within 60 days of the petition’s filing with the ‘appeals board’ and not within 60 days of its filing at a DWC district office.

A petition for reconsideration is initially filed at a DWC district office so that the WCJ may review the petition in the first instance and determine whether their decision is legally correct and based on substantial evidence. Then the WCJ determines whether to timely rescind their decision, or to prepare a report on the petition and transmit the case to the Appeals Board to act on the petition. (Cal. Code Regs., tit. 8, §§ 10961, 10962.)

Once the Appeals Board receives the case file, it also receives the petition in the case file, and the Appeals Board can then ‘act’ on the petition.

If the case file is never sent to the Appeals Board, the Appeals Board does not receive the petition contained in the case file. On rare occasions, due to an administrative error by the district office, a case is not sent to the Appeals Board before the lapse of the 60-day period. On other rare occasions, the case file may be transmitted, but may not be received and processed by the Appeals Board within the 60-day period, due to an administrative error or other similar occurrence. When the Appeals Board does not review the petition within 60 days due to irregularities outside the petitioner’s control, and the 60-day period lapses through no fault of the petitioner, the Appeals Board must then consider whether circumstances exist to allow an equitable remedy, such as equitable tolling.

It is well-settled that the Appeals Board has broad equitable powers. (Kaiser Foundation Hospitals v. Workers’ Compensation Appeals Board (1978) 83 Cal.App.3d 413, 418 [43 Cal.Comp.Cases 785] citing Bankers Indem. Ins. Co. v. Indus. Acc. Com. (1935) 4 Cal.2d 89, 94-98 [47 P.2d 719]; see Truck Ins. Exchange v. Workers’ Comp. Appeals Bd. (Kwok) (2016) 2 Cal.App.5th 394, 401 [81 Cal.Comp.Cases 685]; State Farm General Ins. Co. v. Workers’ Comp.Appeals Bd. (Lutz) (2013) 218 Cal.App.4th 258, 268 [78 Cal.Comp.Cases 758]; Dyer v. Workers’Comp. Appeals Bd. (1994) 22 Cal.App.4th 1376, 1382 [59 Cal.Comp.Cases 96].) It is an issue of fact whether an equitable doctrine such as laches applies. (Kwok, supra 2 Cal.App.5th at p. 402.)

The doctrine of equitable tolling applies to workers’ compensation cases, and the analysis turns on the factual determination of whether an opposing party received notice and will suffer prejudice if equitable tolling is permitted. (Elkins v. Derby (1974) 12 Cal.3d 410, 412 [39 Cal.Comp.Cases 624].) As explained above, only the Appeals Board is empowered to make this factual determination.

In Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493], the Appeals Board denied applicant’s petition for reconsideration because it had not acted on the petition within the statutory time limits of Labor Code section 5909. This occurred because the Appeals Board had misplaced the file, through no fault of the parties. The Court of Appeal reversed the Appeals Board’s decision holding that the time to act on applicant’s petition was tolled during the period that the file was misplaced, especially in light of the fact that the Appeals Board had repeatedly assured the petitioner that it would rule on the merits of the petition. (Id., at p. 1108.)

Like the Court in Shipley, ‘we are not convinced that the burden of the system’s inadequacies should fall on [a party].’ (Ibid.) The touchstone of the workers’ compensation system is our constitutional mandate to ‘accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character.’ (Cal. Const., art. XIV, § 4.) “Substantial justice” is not a euphemism for inadequate justice. Instead, it is an exhortation that the workers’ compensation system must focus on the substance of justice, rather than on the arcana or minutiae of its administration. (See Lab. Code, § 4709 [‘No informality in any proceeding . . . shall invalidate any order, decision, award, or rule made and filed as specified in this division.’].)

With that goal in mind, all parties to a workers’ compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers’ Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) If a timely filed petition is never considered by the Appeals Board because it is “deemed denied” due to an administrative irregularity not within the control of the parties, the petitioning party is deprived of their right to a decision on the merits of the petition. (Lab. Code, §5908.5; see Evans v. Workmen’s Comp. Appeals Bd. (1968) 68 Cal.2d 753, 754-755 [33 Cal.Comp.Cases 350]; LeVesque, supra 1 Cal.3d 627, 635.) Just as significantly, the parties’ ability to seek meaningful appellate review is compromised, raising issues of due process. (Lab. Code, §§ 5901, 5950, 5952; see Evans, supra, 68 Cal.2d 753.)

Substantial justice is not compatible with such a result. A litigant should not be deprived of their due process rights based upon the administrative errors of a third party, for which they bear no blame and over whom they have no control. This is doubly true when the Appeals Board’s action in granting a petition for reconsideration has indicated to the parties that we will exercise jurisdiction and issue a final decision on the merits of the petition, and when, as a result of that representation, the petitioner has forgone any attempt to seek judicial review of the ‘deemed denial.’ Having induced a petitioner not to seek review by granting the petition, it would be the height of injustice to then leave the petitioner with no remedy.

In this case, the WCJ issued the Findings and Order on [insert date], and petitioner filed a timely Petition on. According to EAMS, the case file was transmitted to the Appeals Board on [insert date]. However, for reasons that are not entirely clear from the record, the Appeals Board did not actually receive notice of and complete review of the Petition until [insert date], and we granted the Petition that same day.

Accordingly, the Appeals Board failed to act on the Petition within 60 days, through no fault of the parties. But by issuing the order granting reconsideration, we sent a clear signal to the parties of our intention to exercise jurisdiction and issue a final decision after reconsideration. Neither party expressed any opposition to this course of action, and it appears clear from the fact that neither party sought judicial review of our grant of reconsideration that both parties have acted in reliance on our grant.

Under the circumstances, the requirements for equitable tolling have been satisfied in this case. Accordingly, our time to act on defendant’s petition was equitably tolled until 60 days after [insert date]. Because we granted the petition on [insert date], our grant of reconsideration was timely, and we may issue a decision after reconsideration addressing the merits of the petition.”

© Copyright 2024 LexisNexis. All rights reserved.