ADJ11137938 — California WCAB decision

What the panel ordered

WCJ decision of March 29, 2021 rescinded; matter returned to trial level for further proceedings and decision by WCJ.

Petition for reconsideration filed by defendant on April 7, 2021; WCAB did not act by June 7, 2021 due to clerical error; time to act tolled; case returned to trial level for WCJ to consider proposed settlement.

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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 found the defendant's petition was timely filed and the Board's failure to act was due to a clerical error, thus tolling the time to act on the petition.

From the decision · page 1We first note that defendant's petition was verified and timely filed on April 7, 2021. Although we did not act upon the petition by June 7, 2021 as required by section 5909, it was through no fault of defendant. 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 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. (Shipley, supra, 7 Cal.App.4th 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]." (Shipley, supra, 7 Cal.App.4th at p. 1108.) Therefore, considering that defendant filed a timely petition and that the WCAB's failure to act was due to a clerical error by the district office, we find that our time to act on the petition is tolled.

The facts that decided it

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

Defendant's petition for reconsideration was timely filed on April 7, 2021.

Favours Applicant prevailed

Established the petition was timely and triggered the Board's duty to act.

From the decision · page 1We first note that defendant's petition was verified and timely filed on April 7, 2021. Although we did not act upon the petition by June 7, 2021 as required by section 5909, it was through no fault of defendant. 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 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. (Shipley, supra, 7 Cal.App.4th 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]." (Shipley, supra, 7 Cal.App.4th at p. 1108.) Therefore, considering that defendant filed a timely petition and that the WCAB's failure to act was due to a clerical error by the district office, we find that our time to act on the petition is tolled.

The Board did not act on the petition by June 7, 2021 due to a clerical error by the district office.

Favours Applicant prevailed

The Board's failure to act was not the fault of the defendant, justifying tolling of the time to act.

From the decision · page 1We first note that defendant's petition was verified and timely filed on April 7, 2021. Although we did not act upon the petition by June 7, 2021 as required by section 5909, it was through no fault of defendant. 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 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. (Shipley, supra, 7 Cal.App.4th 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]." (Shipley, supra, 7 Cal.App.4th at p. 1108.) Therefore, considering that defendant filed a timely petition and that the WCAB's failure to act was due to a clerical error by the district office, we find that our time to act on the petition is tolled.

ADJ11137938 · October 20, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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