California Supreme Court: WCAB's 60-Day Reconsideration Deadline Is Mandatory and Cannot Be Self-Tolled
In Mayor v. Workers' Comp. App. Bd. (S287261), all seven justices agreed that a petition deemed denied after 60 days cannot be resurrected by a late board order claiming administrative delay — disapproving a practice the WCAB had followed for decades.
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The California Supreme Court ruled unanimously on August 24, 2026 that the Workers' Compensation Appeals Board lacks the authority to extend its own deadline to act on petitions for reconsideration, settling a procedural question that had generated uncertainty in California workers' compensation proceedings for decades. In Mayor v. Workers' Comp. App. Bd., No. S287261, Justice Evans, writing for all seven justices, held that the 60-day period in former Labor Code section 5909 is a mandatory procedural requirement — and that a petition not acted upon within that window is deemed denied by operation of law, with no power remaining in the Board to issue a binding late order.
The case arose from a workers' compensation claim filed by Joseph Mayor against his employer, Ross Valley Sanitation District. A workers' compensation judge awarded Mayor total and permanent disability. The employer filed a timely petition for reconsideration, which is the vehicle for seeking board review of a trial-level award. The Workers' Compensation Appeals Board, however, took no action within the 60-day statutory period and ultimately issued its decision 144 days after the petition was filed. The Board attributed the delay to an administrative irregularity — specifically, that it had not received notice of the petition until after the 60-day window had already expired.
That justification reflected a long-standing WCAB practice. For decades, the Board had relied on the Court of Appeal decision in Shipley v. WCAB (1992) to support the view that it could toll its own 60-day deadline when internal administrative problems prevented timely action. Under that practice, an unanswered petition for reconsideration occupied procedural limbo: the Board might act late, and a late order could still carry legal effect. Parties whose petitions went unanswered could not safely treat a 60-day expiration as a final denial.
The California Supreme Court rejected that framework entirely. The unanimous court held that the deadline in former Labor Code section 5909 is mandatory: the statute provides that a petition for reconsideration is deemed denied unless the Board acts within 60 days, and that language leaves the Board no opening to grant itself additional time through equitable tolling. The court further held that a party seeking to enforce the deadline must proceed via a petition for writ of mandate — the vehicle for compelling a government body to perform a required act — rather than the writ of review ordinarily used to seek Court of Appeal scrutiny of a WCAB order on the merits. The court disapproved Shipley to the extent it had been read to confer a due-process right to appeals board review of a petition for reconsideration after the statutory 60-day period has passed.
Once a petition is deemed denied at the 60-day mark without Board action, the party that filed the petition has 45 days in which to seek appellate review by filing a petition for writ of review with the Court of Appeal. If that 45-day window expires without a filing, the trial-level order becomes final. The court affirmed the Court of Appeal's judgment, which had granted a writ of mandate and directed the Board to rescind its untimely reconsideration order in Mayor's case.
California's Legislature has since amended Labor Code section 5909, effective July 2, 2024, to modify how the 60-day period is measured. Under the current statute, the clock starts from the date a workers' compensation judge transmits the case file to the appeals board — not from the filing date of the petition, as under the former version. The Legislature also eliminated a sunset provision that would have reinstated the filing-date trigger, making the transmission-date rule permanent. Because Mayor was decided under the former statute, the court's analysis turns on that version, but its core holding — that the deadline is mandatory and cannot be equitably tolled by the Board — applies with equal force to the current provision.
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