The California Supreme Court has scheduled oral argument in the case of Joseph Mayor v. Workers’ Compensation Appeals Board et.al., S287261 for April 2nd, 2026 at 1:30 pm.
In a triad of published decisions by three separate Court of Appeal panels, namely, Earley v. Workers’ Comp. Appeals Bd., et al., 94 Cal. App. 5th 1 (2023) (“Earley”), Zurich American Ins. Co. v. Workers’ Comp. Appeals Bd., et al., 97 Cal. App. 5th 1213 (2023)(“Zurich”), and most recently in Mayor v. Workers’ Comp. Appeals Bd., et al., 104 Cal. App. 5th 1297 (2024) (“Mayor”), the Workers’ Compensation Appeals Board’s “grant for study” orders pursuant to the former version of Labor Code section 5909 (Section 5909) have been found to be unlawful.
The Mayor court found that the Appeals Board exceeded its jurisdiction when it issued the order granting reconsideration beyond 60 days from the date the petition was filed with the DWC. (Mayor, supra, 104 Cal.App.5th at p. 725.) The court granted a writ of mandate and ordered that the Appeals Board rescind its order granting reconsideration and its January and February decisions. (Id. at p. 731.)
This appears to be a systemic problem with the WCAB. The Amicus Curiae Brief of American Property Casualty Insurance Association stated “[o]ne appellate court noted that, as of November 2021, there were over 500 pending cases in which the WCAB had invoked “Shipley tolling” and issued a boilerplate “further study” order. The practice since then has continued unabated, often ending in simple affirmances in unremarkable cases.”
The parties sought review of the Courts of Appeal decisions, and the Supreme Court granted review in Mayor. The Supreme Court is asked to answer the question presented by the essential issue “[m]ay the Appeals Board apply equitable tolling to act upon a petition for reconsideration beyond the 60-day period provided in Labor Code section 5909, when, through no fault of the parties, the Appeals Board did not receive the petition for reconsideration until after the 60-day period has elapsed?” Review was granted on December 11, 2024.
After the Petition for Review was granted, the parties filed briefs with the Supreme Court, presenting their view of the facts and law on the issues presented as follows.
– – Respondent, Workers’ Compensation Appeals Board, Petition for Review Filed on October 7, 2024
– – Petitioner’s Answer to Petition for Review Filed on October 25, 2024
– – Respondent, Workers’ Compensation Appeals Board, Reply to Answer to Petition for Review Filed on November 4, 2024
– – Respondent, Workers’ Compensation Appeals Board, Opening Brief on the Merits Filed on February 10, 2025
– – Petitioner’s Answer Brief on the Merits Filed on March 10, 2025
– – Petitioner’s Notice of Errata Filed on March 11, 2025
– – Respondent, Workers’ Compensation Appeals Board, Reply Brief on the Merits Filed on April 1, 2025
– – Amicus Curiae Brief of American Property Casualty Insurance Association Filed on June 2, 2025
– – Amicus Curiae Brief of Mashallah Ishal Filed on June 3, 2025
– – Respondent, Workers’ Compensation Appeals Board, Response to Amicus Curiae Brief Filed on July 1, 2025
– – Respondent, Workers’ Compensation Appeals Board, Response to Amicus Curiae Brief Filed on July 3, 2025
– – Petitioner’s Supplemental Brief Filed on March 13, 2026
Subsequently, in 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 in Miraco.
In the lead case, Joseph Mayor argues that Labor Code §5909 is mandatory and jurisdictional, and the appeals Board does not have fundamental jurisdiction to consider a petition for reconsideration after the expiration of the 60-day limit set forth in the statute.
The WCAB responds by saying “[f]or 30 years, the courts of this state followed the Fourth District’s decision in Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1107 (“Shipley”), holding that because section 5909 is premised upon the Appeals Board having possession of a petition for reconsideration, equitable tolling may apply to extend the 60-day deadline to act in cases where the Appeals Board does not have the petition.” It urges the Supreme Court to follow the rationale in Shipley.
The American Property Casualty Insurance Association (APCIA) said it is the primary national trade association for home, auto, and business insurers, with a legacy dating back 150 years. APCIA’s members represent 65 percent of the United States property-casualty insurance market and write more than $65 billion in premiums in the State of California annually, including over 71 percent of the workers’ compensation insurance market.
APCIA said it “is interested in this case because the Workers’ Compensation Appeals Board’s months-long delay in ruling on the petition for reconsideration here is part of a widespread and damaging practice.”