The California 6th District Court of Appeals on Wednesday published its decision holding that the Workers' Compensation Appeals Board cannot grant petitions for reconsideration long after the 60-day statutory deadline without demonstrating a factual basis for equitable tolling.

Zenith Insurance Co. et al. v. WCAB (Chan) involved a petition for reconsideration filed in November 2022, which the appeals board did not receive notice of until Jan. 17, 2023. On March 3, 2023, the board granted the petition for purposes of further study. On Nov. 1, 2024, the WCAB issued an opinion and decision after reconsideration, reversing the workers' compensation judge's findings.

At the time, Labor Code Section 5909 deemed that a petition not acted upon within 60 days was denied. The WCAB said allowing a petition to be denied due to an administrative error that is outside the petitioner's control would deprive parties of their due process right to a decision on the merits, and the situation justified tolling the 60-day deadline for it to act.

Equitable tolling requires three elements: timely notice, lack of prejudice to the opposing party, and reasonable and good faith conduct. Even if notice and lack of prejudice are satisfied, the court said, a mere unexplained delay does not justify tolling the 60-day deadline for reconsideration under former Labor Code Section 5909.

The 6th DCA said the WCAB failed to show that it acted diligently and in keeping with the spirit of the 60-day deadline once it received notice of the petition. Without equitable tolling, the November 2024 order was in excess of the WCAB's jurisdiction and must be reversed, the court said.

The published decision in Zenith Insurance Co. v. WCAB (Chan), H052785, is here.