California Supreme Court Holds Appeals Board May Not “Equitably Toll” Mandatory Deadlines of LC 5909 60-Day Decision Period
September 3, 2026
When a petition for reconsideration is filed by an aggrieved party, Labor Code §5909 states that the Appeals Board must act on the petition within 60 days of the trial judge’s transmittal of the file to the Appeals Board. The Appeals Board has traditionally relied on the holding in Shipley v. WCAB (1992) 7 Cal. App. 4th 1104 to “equitably toll” that timeframe where it fails to act within that 60 days due to some administrative issues that is no fault of the parties, thus circumventing the provision of §5909 which renders late decisions denied by operation of law. However, in 2024, the Second District Court of Appeal held in Zurich American Insurance Co. v. WCAB (2023) 97 Cal. App. 5th 1213 (Zurich) that the Appeals Board acted in excess of its jurisdiction when granting reconsideration after the 60-day period. Despite the Zurich decision, the Appeals Board continued to grant reconsideration after the 60 day statutory deadline, stating that the Zurich court did not prohibit the practice of equitable tolling in all cases.
On August 24, 2026, the Supreme Court issued its decision in Mayor v. WCAB (S287261) effectively ending the Appeal’s Board’s practice of “equitably tolling” its own 60 day timeframe. In Mayor, the Appeals Board issued an order granting reconsideration well beyond the 60 day timeframe, stating that it had received notice of the petition late. Citing the Zurich case, the applicant filed a Petition for Writ of Mandate, appealing the late granting of reconsideration, arguing that the Appeals Board lacked jurisdiction to issue the decision after the 60 days had elapsed, and that the grant of reconsideration should be set aside. After the Court of Appeal granted the writ of mandate, the California Supreme Court granted review in Mayor, as well as other cases pending the same issue.
The California Supreme Court, contrary to the Zurich court, found that Labor Code §5909 does not implicate the Appeals Board’s fundamental jurisdiction, noting the Board has continuing jurisdiction limited by the five-year statute of limitations pursuant to Labor Code §5804. However, the Court agreed the 60-day period to act on a Petition for Reconsideration is mandatory, and granting reconsideration after the deadline is in excess of the Board’s jurisdiction. The court characterized the Appeals Board’s routine invocation of Shipley “as a workaround to address a recurring, systemic problem with the board’s functioning” and its “failure to implement processes that would ensure it receives the petition…in a timely manner.” The Court further explained that even if these repeated circumstances present due process concerns, the “long-standing failures, without more, do not justify… the board to routinely toll its own statutory deadline to act.” The Court clarified that Shipley dealt with due process concerns, which can only be raised by parties and litigants, of which the Appeals Board is neither. In Mayor, neither party argued its due process rights had been violated by the late grant of reconsideration by the Appeals Board.
Practical considerations: Mayor explicitly expresses no opinion on the propriety of the “grant-for study practice” discussed in the Earley case; the Appeals Board may still issue decisions granting reconsideration to study the issues presented, and need not issue a final award or order on the merits within 60 days. The Court does find that the correct procedural relief—as sought by the applicant in Mayor—is to file a petition for writ of mandate (acknowledging a petition for writ of prohibition is likely more correct), when the initial grant for study order is untimely under §5909. The Court noted that a party should not be compelled to wait until an unspecified future date to pursue a writ of review to enforce an award when not challenging the merits of an order granting reconsideration.
Although Mayor is based on the pre-July 2024 §5909, the Court acknowledges that the current version of §5909 merely changes the trigger of the 60 days from a the date the petition for reconsideration is filed to the date of its transmission by the WCJ to the Appeals Board. Therefore, we read Mayor as continuing to apply to all orders granting reconsideration more than 60 days after the applicable LC 5909 trigger, especially where the Appeals Board has cited its own “equitable tolling” of the 60 day requirement.
Special attention should be given to the timing of the Appeals Board’s grants of reconsideration, including cases where the Appeals Board may already have done so late or via equitable tolling. Be prepared to file a writ of review with the Court of Appeal should the board fail to act timely
If the Appeals Board fails to abide by the Mayor decision, then after the 60 day period elapses, parties who file petitions for reconsideration have 45 days to file a petition for writ of review with the appropriate Court of Appeals per LC 5950.
Written By:
Emma Nelson-Munson, Esq. of our LFLM-Oakland Office
Laughlin, Falbo, Levy & Moresi, LLP.