Special Report: WCAB Provides Guidance on New Time Limits for Reconsideration Under LC 5909

by Sure Log
November 7th, 2024

Under former Labor Code § 5909, a petition for reconsideration was deemed denied by operation of law unless the Workers’ Compensation Appeals Board (WCAB) acted on it within 60 days from the date of filing. Effective July 2, 2024, LC 5909 states:

• “(a) 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 a trial judge transmits a case to the appeals board.
• “(b)(1) When a trial judge transmits a case to the appeals board, the trial judge shall provide notice to the parties of the case and the appeals board.
• “(2) For purposes of paragraph (1), service of the accompanying report, pursuant to subdivision (b) of Section 5900, shall constitute providing notice.”

LC 5909(c) specifies that the statute will be repealed as of July 1, 2026. The Court of Appeal has explained that LC 5909 was amended as a short-term fix to the WCAB’s need for resources, and gives it the additional time to act on petitions it needs to resolve normal human errors or administrative irregularities. (Mayor v. WCAB (2024) 104 Cal. App. 5th 1297.)^[1]

On Nov. 5, 2024, the WCAB issued a significant panel decision, Reed v. County of San Bernardino, applying the time limits to act on a petition for reconsideration and explaining when a petition for reconsideration is appropriate.

FACTS OF THE CASE

An applicant’s attorney filed a declaration of readiness to proceed to a mandatory settlement conference on the issue of attorney fees under LC 5710. The matter proceeded to a hearing Aug. 7, 2024, and the WCJ ordered the matter off calendar over the applicant attorney’s objection.

On Aug. 28, 2024, the applicant’s attorney filed a petition for reconsideration in response to the order taking the matter off calendar, and alleged that the WCJ should not have denied his request for a trial.

WCAB’S DECISION

First, the WCAB addressed the timeliness of its decision under LC 5909. It explained that under the current statute, effective July 2, 2024, it was required to act on a petition for reconsideration within 60 days of transmission of the case to it. It explained that the date of transmission is reflected in “Events” in the Electronic Adjudication Management System (EAMS). Specifically, in Case Events, under Event Description is the phrase “Sent to Recon” and under Additional Information is the phrase “The case is sent to the Recon board.”

It explained that according to Events, the case was transmitted Sept. 6, 2024, and 60 days from the date of transmission is Nov. 5, 2024. Because the decision was issued Nov. 5, 2024, the WCAB explained that it acted timely on the petition as required by LC 5909(a).

The WCAB also explained that LC 5909(b)(1) requires that the parties and the WCAB be provided with notice of transmission of the case. That’s to ensure the parties are notified of the accurate date for the commencement of the 60-day period for the WCAB to act on a petition. LC 5909(b)(2) deems service of the Report and Recommendation to be notice of transmission.

It explained that according to the proof of service, the Report and Recommendation by the WCJ was served Sept. 6, 2024, and the case was transmitted to the WCAB Sept. 6, 2024. So it concluded that the parties were provided with the notice of transmission required by LC 5909(b)(1) because service of the Report in compliance with LC 5909(b)(2) provided them with actual notice as to the commencement of the 60-day period Sept. 6, 2024.

Second, the WCAB addressed the applicant’s petition for reconsideration. It explained that a petition for reconsideration may properly be taken only from a “final” order, decision or award, which is defined as one that either determines any substantive right or liability of those involved in the case, or determines a threshold issue that is fundamental to the claim for benefits. It emphasized that orders regarding trial setting are not final orders and that seeking reconsideration of nonfinal orders is sanctionable.

The WCAB determined that the applicant’s attorney improperly filed a petition for reconsideration in response to a nonfinal order. It did not believe, however, that the petition was filed for an improper purpose, such as halting proceedings at the trial level, because the attorney’s objective was to proceed to trial as quickly as possible. So the WCAB did not issue sanctions, but admonished the attorney that any future petition challenging a nonfinal order must be filed as a petition for removal and that such conduct may be subject to sanctions under LC 5813 and CCR 10841.

ANALYSIS OF THE DECISION

Significant panel cases are designated by all members of the appeals board to be of significant interest and importance to the workers’ compensation community. Although not binding precedent, these decisions are intended to augment the body of binding appellate and en banc decisions by providing further guidance to the workers’ compensation community (CCR 10305(u)).

In Reed, the WCAB seeks to provide guidance to practitioners regarding the application of the amendments to LC 5909. The appellate courts have held that the WCAB is without jurisdiction to consider a petition for reconsideration after the 60-day period in LC 5909 has passed, and decisions issued after that time period are void. If the WCAB does not timely consider a petition for reconsideration, the petition is deemed denied and the petitioner must file a petition for writ of review to protect its rights. (Zurich American Insurance Co. v. WCAB (2023) 97 Cal. App. 5th 1213; Mayor v. WCAB (2024) 104 Cal. App. 5th 1297.)

So the WCAB is explaining to practitioners how they can and should navigate EAMS to determine when a case is transmitted for the purposes of the 60-day period. This will allow practitioners to know when to file a petition for a writ of review.

In Reed, the WCAB also expressed frustration regarding the improper filing of a petition for reconsideration. Earlier this year, the WCAB en banc issued a series of decisions imposing sanctions against an applicant’s attorney for filing petitions for reconsideration when petitions for removal were appropriate.^[2] The WCAB has explained that when a petition for reconsideration is filed, pursuant to CCR 10961, a WCJ loses authority to issue any orders until the WCAB dismisses or decides the petition. But, per CCR 10955(e), the filing of a petition for removal does not terminate the WCJ’s authority to proceed in a case or require the workers’ compensation judge to continue or cancel a previously scheduled hearing.

In Reed, the WCAB did not believe the applicant’s attorney acted improperly by improperly filing a petition for reconsideration, as it was clear the attorney wanted to proceed to trial. But because the WCAB repeatedly has addressed this issue, there is no guarantee it will be forgiving in the future. By issuing a significant panel decision, the WCAB is giving clear notice to all practitioners that it expects them to understand when to file a petition for reconsideration and when to file a petition for removal.