ADJ3970584 — California WCAB decision

What the panel ordered

Petition for reconsideration granted; WCJ's order dismissing particular injury claims rescinded; matter returned for further proceedings.

Applicant sought reconsideration of a WCJ's order dismissing particular injury claims; the WCAB considered the petition, answer, and WCJ's report, and granted reconsideration, rescinding the order and remanding for further proceedings.

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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's failure to act on the petition for reconsideration within 60 days was due to administrative error, not the applicant's fault, and due process requires the time to act be tolled; further, the WCJ did not create a record or base the dismissal on admitted evidence as required by law.

From the decision · page 4Like the Court in Shipley, "... we are not convinced that the burden of the system's inadequacies should fall on [a party]...." (Shipley, supra, at p. 1108.) Here, the Order was served on June 13, 2023, and applicant's Petition was timely filed on July 6, 2023. However, the Appeals Board failed to act on applicant's Petition within 60 days of its filing, and this failure to act was through no fault of applicant. Therefore, considering that the Appeals Board's failure to act on the objection/petition was in error, we conclude that our time to act on the objection/petition was tolled.

The rules the panel named

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

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

A party may not be deprived of a substantial right without notice; time to act on a petition is tolled if the Board's failure to act is due to its own error.

Applied to toll the 60-day period for acting on the petition for reconsideration due to administrative error, preserving applicant's rights.

From the decision · page 4We note that a petition is generally considered denied by operation of law if the Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) However, "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 applicant's petition for reconsideration because the Appeals Board had not acted on the petition within the statutory time limits of Labor Code section 5909. The Appeals Board did not act on applicant's petition because it 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. (Id., at p. 1108.)

Lab. Code, § 5313; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

WCJ must issue decisions based on admitted evidence and create a record supporting findings.

Applied to find the WCJ's order improper for lack of record and evidence.

From the decision · page 4The statutory and regulatory duties of a WCJ include the issuance of a decision that complies with Labor Code section 5313. A WCJ is required to "make and file findings upon all facts involved in the controversy and an award, order, or decision stating the determination as to the rights of the parties. Together with the findings, decision, order or award there shall be served upon all the parties. The endorsement to the proceedings a summary of the evidence received and relied upon and the reasons or grounds upon which the determination was made." (Lab. Code, § 5502, 5313; Cal. Code Regs., tit. 8, § 10761; see also Blackledge v. Bank of America, ACE American Insurance Company (Blackledge) (2010) 75 Cal.Comp.Cases 613, 621-622 (Appeals Board en banc).)

ADJ3970584 · December 4, 2023

What the panel ordered

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