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Board Panel Makes it Clear that the 60 Day Time Limit to Act on a Petition for Reconsideration is Tolled when an Error Occurs at the Board Level

June 13, 2024

The Workers’ Compensation Appeals Board has designated its March 27, 2024, opinion in Sandra Ja’Chim Scheuing v. Livermore National Laboratory, permissibly self-insured, administered by Gallagher Bassett, as a significant panel decision. The decision tackles the issue of when a petition for reconsideration is timely filed, but is not received by the Appeals Board within the statutory time limit to act upon the petition by no fault of the parties.

In Ja’Chim, Applicant sought a finding of permanent and total disability. The Findings, Award & Order issued on December 1, 2023, found that the applicant had sustained an industrial injury dated February 23, 2007, to the hands, feet, ankles, right elbow, and in the form of complex regional pain syndrome (CRPS). The Court found that impairment from these injuries rated to 28% permanent disability with future medical care for the hands, feet, ankles, and CRPS based on the findings of the AME.

Applicant timely filed a Petition for Reconsideration on December 18, 2023, asserting that the Judge had erred in his findings and failed to consider all the evidence. Per Labor Code §5909, if the Board does not act on a petition within 60 days of its filing, the petition is denied by operation of law. In the present case, the Board did not act on the petition within 60 days due to an administrative issue. As we know, the Board was challenged on its prior practice of granting reconsideration “for study” in order to extend the timeframe to issue a final decision on the merits of the petition, sometimes leading to lengthy delays. The Court of Appeal for the Second District ended the “grant for study” practice, placing the Board in somewhat of a bind. (

On Reconsideration, the WCAB delved into this timing issue, comparing it to an issue in a previous case, Shipley v. Workers’ Comp. Appeals Bd. (1992) 57 CCC 493. In Shipley, the Appeals Board did not act on the applicant’s petition for reconsideration within the statutory time limit because they had misplaced the file. The Board consequently denied the petition. Upon appeal, the Court reversed the denial decision and held that the statutory time limit was tolled while the file was missing.

The present case has comparable facts to Shipley. The Board explained in their opinion that when a petition is filed, a task is sent to a Workers’ Compensation Judge (WCJ) to notify them that a report is needed. However, the Appeals Board does not receive any notice until the district office transmits the case through EAMS. Here, although the applicant’s petition was timely filed, the district office did not transmit the matter to the Appeals Board until February 21, 2024, well over the 60-day time limit per Labor Code §5909.

The Board noted that deeming a timely-filed petition denied due to a problem or mistake within the system as opposed to an error by a party would deprive the parties of their right to a decision on the petition’s merits. Additionally, denying a petition under these circumstances raises the issue of due process, as it jeopardizes the parties’ opportunity to seek appellate review. Thus, the Board found that their time to act on Applicant’s petition had been tolled until 60 days after actual receipt of the notice from the district office.

In sum, though a somewhat puzzling decision to designate as a significant panel decision, it is clear the WCAB wanted to send a message in light of the Court of Appeal’s prior holding regarding “grant for study.” This significant panel decision on an interesting timing issue has further confirmed the WCAB will continue to use Shipley as precedent, and makes it clear that the parties should not suffer when an administrative error occurs.

Written By:

Ariel C. Escalante, Esq. of our LFLM – Sacramento Office

Laughlin, Falbo, Levy & Moresi, LLP.