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SPECIAL REPORT: WCAB Issues Significant Panel Decision That It Will Continue to Follow Shipley

As discussed in an earlier Special Report, for more than 30 years, the Workers' Compensation Appeals Board (WCAB) relied on Shipley v. WCAB (1992) 7 Cal. App. 4th 1104 to decide petitions for reconsideration, even if it did not act timely on a petition pursuant to Labor Code § 5909. That statute states, "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." Based on Shipley, the WCAB generally held that if a petition was not considered within the time limit of LC 5909 due to the WCAB's own inadvertent error, it still may decide the merits of the petition, even if the 60-day time period has elapsed. On Dec. 18, 2023, the 2nd District Court of Appeal issued its decision in Zurich American Insurance Co. v. WCAB (2023) 97 Cal. App. 5th 1213, holding that this practice was improper. Zurich stated that "the language and purpose of section 5909 show a clear legislative intent to terminate the Board's...

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