Tuesday, August 25, 2026
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California Supreme Court:
Workers’ Compensation Board May Not ‘Toll’ Own Deadline
Opinion Says Agency’s ‘Practice’ of Allowing Review Outside Statutory Window Is Contrary to Clear Legislative Direction, Disapproves Case Suggesting Permissible Action
By Kimber Cooley, associate editor
A unanimous California Supreme Court yesterday invalidated a “practice” by the Workers’ Compensation Appeals Board to “equitably toll” a statutory deadline in order to grant itself more time to act on a petition for reconsideration of a decision by an administrative judge, highlighting that the doctrine has only ever been applied to benefit litigants and never to give flexibility to an agency charged by the Legislature with making a timely decision.
Justice Kelli Evans authored yesterday’s opinion, saying:
“[F]undamentally, the Appeals Board misapprehends the doctrine of equitable tolling in two ways: who may assert tolling; and the type of deadline that may be tolled. As we have observed, equitable tolling excuses litigants from filing deadlines such as statutes of limitations….We are not aware of any precedent applying equitable tolling to decisional deadlines imposed on an adjudicative body.”
Labor Code §5909 provides the applicable statutory deadline, which at the time of the review process at issue in the case specified:
“A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date of filing.”
Sec. 5909 was amended in 2024 to start the clock when an administrative judge transmits the case to the reviewing agency. The change was motivated by concerns that petitions were being denied by operation of law because the board did not receive the case file in time due to backlogs at the lower agency level.
Disability Determination
The question arose after Joseph Mayor was awarded total, permanent disability by a workers’ compensation judge (“WCJ”) on March 2, 2023, following an injury he suffered while working for the Ross Valley Sanitation District in Marin County in December 2013. Ross Valley timely petitioned for reconsideration by the Workers’ Compensation Appeals Board on March 23, 2023, and the agency’s filing system showed the request was received on the same day.
Nearly five months passed before the board issued an opinion granting the petition for reconsideration, citing the 1992 decision by Div. Three of the Fourth District Court of Appeal in Shipley v. Workers’ Comp. Appeals Board, which held that an allegedly injured party’s due-process rights were violated by a denial of his petition for reconsideration based on §5909.
Saying that the delay was caused by an unspecified “administrative irregularity,” the board asserted that it did not receive Mayor’s file until after the deadline had passed and asserted that Shipley authorized it to equitably toll the statutory timeline. Mayor filed a petition for writ of mandate, arguing that the 60-day deadline was mandatory, jurisdictional, and the agency acted in excess of its powers when it granted the request for reconsideration.
Writ Relief
On Aug. 28, 2024, Div. Four of the First District Court of Appeal granted Mayor’s petition, agreeing with Mayor that the section is mandatory. In yesterday’s opinion, Evans declared:
“While there may be some narrow circumstances in which due process considerations could permit the Appeals Board to act outside of the 60-day deadline, Ross Valley has not asserted that its due process rights were violated, and the Board’s automatic tolling of its own deadline is not the appropriate mechanism to resolve such concerns. We therefore affirm the judgment of the Court of Appeal granting Mayor’s petition for writ of mandate.”
She added in a footnote:
“We disapprove of Shipley…to the extent it suggests that all parties necessarily have a due process right to Board review of a petition for reconsideration after the 60-day deadline in section 5909. More is required to establish a due process violation resulting from the failure to timely rule on a petition for reconsideration than the simple filing of a reconsideration petition and the expiration of the statutory deadline to act.”
Two Issues
The jurist noted that the case required the court to “address two underlying issues: whether the statutory deadline is jurisdictional; and, if it is not, whether the Legislature intended to preclude equitable tolling.” She said:
“We conclude that section 5909 does not implicate the Appeals Board’s fundamental jurisdiction. We also conclude that the Appeals Board lacks the authority to toll its own deadline to act.”
Turning to the statutory terms, she wrote:
“Former section 5909 neither expressly mentions jurisdiction nor deprives the Appeals Board of the power to act after the 60-day period. The plain language of the statute simply sets a timeline for the Appeals Board to act on a petition for reconsideration…Thus, the Appeals Board’s issuance of a[n]…order after the 60-day period expired was in excess of its jurisdiction, but the Appeals Board did not lack fundamental jurisdiction to issue the order after the period ended.”
As to the question of tolling, she remarked:
“We conclude that the Appeals Board’s practice of self-tolling the 60-day deadline in section 5909 is not supported by the plain language of the statute or its purpose. The statute does not expressly permit the Appeals Board to consider a petition for reconsideration outside of the 60-day statutory period or to equitably toll the 60-day deadline. To the contrary, the statute’s plain language cuts off any further action by the Appeals Board after 60 days by deeming petitions for reconsideration denied by operation of law if the Board does not take action within that timeframe.”
Self-Tolling Practice
She continued:
“Permitting the Appeals Board to engage in the practice of self-tolling…impacts all litigants. This case is instructive. Mayor’s award of total and permanent disability occurred in March 2023 and…Mayor has not received any compensation since that time even though the deadline for Ross Valley to file a writ petition pursuant to section 5950 expired on July 6, 2023. The Appeals Board’s practice of self-tolling opens the door to open-ended extensions of the time for the Board to act on reconsideration petitions….”
Evans acknowledged that “there may be” circumstances “in which the failure to rule on a timely-filed reconsideration petition would raise due proves concerns” but commented:
“[T]he Appeals Board has routinely invoked Shipley as a workaround to address a recurring, systemic problem with the Board’s functioning—the Board’s failure to implement processes that would ensure it receives the petition for reconsideration or the case file in a timely manner….[S]uch longstanding failures, without more, do not justify a self-administered remedy that permits the Board to routinely toll its own statutory deadline to act, rather than a filing deadline applicable to a litigant.”
The case is Mayor v. Workers’ Compensation Board, 2026 S.O.S. 2620.
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