The “grant-for-study” orders issued by the California Workers’ Compensation Appeals Board (WCAB) have been the subject of multiple appellate challenges for violating the statutory 60-day deadline to act on petitions for reconsideration (under Labor Code § 5909). As of January 2026, at least two related cases are pending before the California Supreme Court:

– – Mayor v. Workers’ Compensation Appeals Board (2024) 104 Cal.App.5th 713 (S287261): Review was granted on December 11, 2024. The case remains pending, with no oral arguments scheduled or decision issued. It presents the following issues: (1) May the WCAB apply equitable tolling to act upon a petition for reconsideration beyond the 60-day period provided in Labor Code § 5909, when the WCAB did not receive the petition for reconsideration until after the 60-day period has elapsed? (2) Did the Court of Appeal act in excess of its jurisdiction in granting relief under traditional mandate (Code Civ. Proc., § 1085), where petitioner did not file a timely petition for writ of review pursuant to Labor Code § 5909?

– – City of Salinas v. Workers’ Compensation Appeals Board (Miraco) (2025) 113 Cal.App.5th 801 (S293212): Review was granted on November 19, 2025, but briefing has been deferred pending a decision in the lead case of Mayor v. Workers’ Compensation Appeals Board (S287261). No oral arguments are scheduled, and no decision has been issued.

Citing the above two decisions, as well as Zurich American Ins. Co. v. Workers’ Comp. Appeals Bd. (2023) 97 Cal.App.5th 1213 – yet another consistent appellate case arrived from the Sixth Appellate District this week in the unpublished case of Zenith Insurance Co. v. Workers’ Compensation Appeals Bd. CA6 – (January 2026)

In this newest case, Kin Chan worked for New Sam Kee Restaurant, LLC as a prep cook. Chan’s coworkers included chef Ha Xu Huynh. On September 15, 2020, Chan and Huynh were preparing dishes in the restaurant when they began to argue. The argument escalated. Huynh struck Chan in the right eye, causing a broken eye socket, among other injuries.

Chan filed an application for workers’ compensation claim in October 2020. The restaurant and its insurance carrier, Zenith, filed an answer denying the allegations and asserting affirmative defenses, including the “initial physical aggressor defense under” section 3600, subdivision (a)(7).

After trial, the WCJ issued written findings and order, finding that Chan “sustained a specific injury” which “occurred during an affray with a co-worker in which [Chan] was the initial physical aggressor.” The WCJ ordered that Chan “shall take nothing by reason of this claim.” The Board acted on Chan’s petition for reconsideration within 60 days and, on March 3, 2023, issued an order granting the petition for reconsideration for purposes of “further study” (grant-for-study order).

Approximately one year and eight months after the grant-for-study order, on November 1, 2024, the Board issued an opinion and decision after reconsideration and rescinded the WCJ’s findings and order denying compensation and substituted a new finding that Chan’s injury was not barred from compensation because the restaurant and Zenith “failed to prove that [Chan] was the initial physical aggressor.”

In support of applying equitable tolling to the instant occasion, the Board invoked Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 (Shipley) for the proposition that “ ‘the burden of the system’s inadequacies should [not] fall on [a party].’ ”

In response the Opinion said “The Board in this case has not attempted to explain the significant delay of 22 months between its receipt of the transmitted case file in January 2023 and the November 2024 order after reconsideration. The timing and nature of the orders issued by the Board in this case stand in contrast with City of Salinas and do not present circumstances suitable to the narrow, equitable remedy intended for “ ‘special situations’ ”

The November 1, 2024 opinion and decision after reconsideration of the Workers’ Compensation Appeals Board was reversed. “We decline to revisit the statutory analysis in City of Salinas and agree with petitioners that the Board exceeded its jurisdiction in granting Chan’s petition for reconsideration. We also agree with petitioners’ alternative argument that the narrow grounds for the Board to exercise equitable tolling have not been met in this case.”