ADJ174134 — California WCAB decision

What the panel ordered

Petition for reconsideration granted; August 23, 2021 Joint Findings, Award and Order rescinded; matter returned to trial level for further proceedings.

Petition for reconsideration filed September 10, 2021, not acted on within 60 days by the Appeals Board, leading to tolling of time to act and granting of reconsideration.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Reconsideration / removalApplicant prevailed

The Appeals Board failed to act on the defendant's petition within 60 days through no fault of the defendant, so the time to act was tolled based on due process principles from Shipley.

From the decision · page 2In this case, the Appeals Board failed to act on defendant's petition within 60 days of its filing on September 10, 2021, through no fault of defendant. Therefore, considering that the Appeals Board's failure to act on the petition was in error, we find that our time to act was tolled.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, § 5909

A petition is generally considered denied by operation of law if the Appeals Board does not grant the petition within 60 days after it is filed.

The Appeals Board did not act within 60 days, but time to act was tolled due to system error.

From the decision · page 1A petition is generally considered denied by operation of law if the Appeals Board does not grant the petition within 60 days after it is filed. (Lab. Code, § 5909.) However, we believe that "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied the 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

Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104

It is a fundamental principle of due process that a party may not be deprived of a substantial right without notice.

The Appeals Board's failure to act on the petition was due to misplaced file, so time to act was tolled.

From the decision · page 1A petition is generally considered denied by operation of law if the Appeals Board does not grant the petition within 60 days after it is filed. (Lab. Code, § 5909.) However, we believe that "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied the 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

ADJ174134 · February 25, 2022

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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