Reported / Citable
Background
Kin Chan worked as a prep cook at the New Sam Kee Restaurant. In September 2020, he and chef Ha Xu Huynh argued in the kitchen; the argument escalated and Huynh struck Chan in the right eye, causing a broken eye socket. Chan filed a workers’ compensation claim. The restaurant and its insurer Zenith asserted the ‘initial physical aggressor’ defense under Labor Code section 3600(a)(7).
After trial, the workers’ compensation administrative law judge denied compensation, finding Chan was the initial physical aggressor. Chan petitioned for reconsideration. The Workers’ Compensation Appeals Board (WCAB) granted reconsideration after the 60-day statutory deadline in former Labor Code section 5909, then issued a decision rescinding the WCJ’s order and finding Chan’s injury compensable. Zenith and the restaurant petitioned for writ review.
The Court’s Holding
The Court of Appeal reversed. Following its earlier decision in City of Salinas v. WCAB and the First District’s analysis in Mayor v. WCAB, the court held that the WCAB exceeded its jurisdiction by granting reconsideration after former section 5909’s 60-day deadline ran. The statutory framework deems a petition denied by operation of law when the Board does not act within the statutory window.
While City of Salinas had recognized that equitable tolling could be available in a narrow class of cases, the court held the equitable-tolling exception did not apply here. The record did not show the kind of agency-misdelivery, system-failure, or extraordinary-circumstances facts that have supported tolling in other recent cases. Without a basis for tolling, the WCAB’s untimely grant of reconsideration was void, and the original WCJ decision denying compensation must stand.
The court declined to revisit City of Salinas’s underlying statutory analysis, noting that the California Supreme Court is poised to resolve the issue in its review of Mayor.
Key Takeaways
- Former Labor Code section 5909’s 60-day deadline for the WCAB to grant or deny reconsideration is jurisdictional in operation; missing it leaves the petition deemed denied.
- Equitable tolling is available in narrow circumstances (per City of Salinas), but petitioners must establish facts supporting tolling beyond ordinary delay.
- WCAB orders granting reconsideration after the statutory deadline are void absent valid equitable tolling, and the underlying WCJ decision controls.
- The California Supreme Court is poised to address the underlying statutory and jurisdictional questions in Mayor v. WCAB; counsel should monitor developments.
- Claimants seeking reconsideration should file early and document any factors that might later support equitable tolling if the Board misses the deadline.
Why It Matters
The decision is the latest in a fast-moving series of California appellate cases reshaping workers’-compensation reconsideration practice. With the WCAB facing significant case-flow pressure, missed-deadline reconsideration grants have become increasingly common. The Sixth District’s published opinion confirms — pending Supreme Court review in Mayor — that those late grants are generally beyond the Board’s jurisdiction.
For workers’-compensation claimants and their counsel, the case is a reminder to push hard for timely Board action and to develop a robust record supporting equitable tolling if delay seems likely. For insurers and employer-side counsel, the case provides a strong basis for challenging late-issued reconsideration orders. For WCAB practitioners on all sides, monitoring the California Supreme Court’s pending decision in Mayor will be essential, since the high court may modify or clarify the analysis.