Lance Miraco filed Application for Adjudication of Claim against the City of Salinas and Corvel Corporation alleging cumulative injury arising from his employment as a police officer with the City. The City and its claims administrator, Corvel, filed an answer denying the allegations of the application. The matter proceeded to trial before the WCJ.

After trial, the WCJ issued her written findings, award, and order (findings and order), finding that Miraco “sustained injury arising out of and in the course of employment during the period from January 1994 through December 31, 2013, to his low back, right leg, and sustained gastritis, gastroesophageal reflux disease, insomnia and hypertensive cardiac disease.”

Applying Labor Code § 5412, the WCJ found the date of injury for Miraco’s hypertensive cardiac disease was June 14, 2013, while the date of injury for his orthopedic injuries and related conditions (including gastritis, reflux, and insomnia) was December 16, 2020.

The findings and order explained that based on the date of injury, Miraco’s workers’ compensation claim for hypertensive cardiac disease, filed on December 24, 2020, “is barred and is not compensable, as beyond the statutory limitation imposed by [section] 5405.”3 Based on these findings, the WCJ awarded future medical treatment for Miraco’s “injuries to his low back, right leg, gastritis, gastroesophageal reflux disease, and insomnia” but not for his cardiac disease.

On October 16, 2023, Miraco timely submitted a petition for reconsideration of the findings and order. The petition for reconsideration challenged the WCJ’s finding that the claim for hypertensive cardiac disease was time barred. The City and Corvel answered the petition for reconsideration within 10 days. On Nov ember 7, 2023, the WCJ served on the parties a report and recommendation on the petition for reconsideration.

Under former Labor Code § 5909, based on Miraco’s filing of the petition for reconsideration on October 16, 2023, the Board had until December 15, 2023, to “act[] upon” the petition before it was “deemed to have been denied.

The Board did not issue its decision until March 12, 2024, when it granted the petition for reconsideration. In deeming its March 12 order timely, the Board invoked the judicially created exception to the 60-day deadline articulated in Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104 (Shipley) for petitions that are not received by the Board due to procedural irregularity.

On the merits, the Board granted the petition for reconsideration and substituted its findings for that of the WCJ. It set the date of injury for Miraco’s injuries, including hypertensive cardiac disease, as December 11, 2020, and determined that compensation for those injuries was not time- barred.

The City and Corvel filed a petition for writ of review to challenge the lawfulness of the Board’s order granting the petition for reconsideration after the expiration of the 60-day statutory deadline delineated by former § 5909.

The Court of Appeal ruled that former § 5909 did not preclude the application of equitable tolling, and the facts warrant its use here. It therefore affirmed the order and opinion of the appeals board in the published case of City of Salinas v Workers’ Comp. Appeals Bd. –H052062 (August 2025).

During the briefing period for this writ proceeding, the Legislature amended § 5909, effective July 2, 2024. In addition, the California Supreme Court granted review of similar issues in Mayor v. Workers’ Comp. Appeals Bd. (2024) 104 Cal.App.5th 713 (Mayor), review granted December 11, 2024, S287261.

The question presented here on appeal is whether the Board may apply equitable tolling to act upon a petition for reconsideration after expiration of the 60-day timeline set forth in former section 5909, and, if so, whether the facts of this case warrant the application of tolling principles.

It was noted that the Court of Appeal in Zurich American Ins. Co. v. Workers’ Comp. Appeals Bd. (2023) 97 Cal.App.5th 1213 (Zurich) disagreed with Shipley.

It went on to say “neither Zurich nor Mayor decided whether the Board’s failure to act on a petition for reconsideration within 60 days meant only that it acted in excess of its jurisdiction, or whether it lost fundamental jurisdiction to consider the petition. Instead, both decisions recognized that, even if the expiration of the 60-day deadline did not affect the Board’s fundamental jurisdiction, the circumstances of those cases did not support the application of equitable tolling. (Zurich, supra, 97 Cal.App.5th at p. 1236, fn. 17; Mayor, supra, 104 Cal.App.5th at pp. 1310–1311, review granted.)”

And it went on to say “We discern no express prohibition in the statutory language of former section 5909 that would preclude, as a matter of law, the application of traditional equitable doctrines like tolling.”

“Our conclusion that the appeals board retains the authority to exercise equitable powers where appropriate, and in the absence of legislative direction to the contrary, is consistent with the judicial powers vested in it.”