Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, 5906
The Appeals Board may grant reconsideration and amend decisions based on evidence previously submitted (Lab. Code, 5906).
The Board granted reconsideration on its own motion and rescinded prior decisions based on the existing record.
From the decision · page 1Pursuant to Labor Code2 section 5906, the appeals board may, "with or without further
proceedings and with or without notice affirm, rescind, alter, or amend the order, decision, or
award made and filed by the appeals board or the workers' compensation judge on the basis of the
evidence previously submitted in the case...." (Lab. Code, § 5906.) In addition, section 5908.5
requires that "[a]ny decision of the appeals board granting or denying a petition for reconsideration
Lab. Code, 5908.5
Decisions granting or denying petitions for reconsideration must state evidence relied upon and reasons for the decision (Lab. Code, 5908.5).
The Board issued a detailed decision explaining the basis for granting reconsideration and rescinding prior decisions.
From the decision · page 2or affirming, rescinding, altering, or amending the original findings, order, decision, or award
following reconsideration... shall state the evidence relied upon and specify in detail the reasons
for the decision." (Lab. Code, § 5908.5; Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d
753, 754-755.) Therefore, pursuant to our authority in sections 5900(b) and 5911, we will grant
reconsideration on our own motion, rescind the January 26, 2024 ODAR, and reissue our decision
as follows.
Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104
The time to act on a petition for reconsideration may be tolled if the petition was not received due to administrative irregularity beyond the petitioner's control (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104).
The Board applied Shipley to toll the 60-day period for reconsideration due to administrative delay, preserving due process rights.
From the decision · page 4Section 5909 provides that a petition for reconsideration is deemed denied unless the
Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) However, "it is
a fundamental principle of due process that a party may not be deprived of a substantial right
without notice...." (Shipley, supra, 7 Cal.App.4th at p. 1108; see Rea v. Workers' Comp. Appeals
Bd. (2005) 127 Cal.App.4th 625, 635 fn. 22 [70 Cal.Comp.Cases 312] ["irregularity which
deprives reconsideration under the statutory scheme denies due process"].) In Shipley, applicant
sought a writ of review of a decision of the Appeals Board denying his petition for reconsideration
by operation of law (Lab. Code, § 5909). The Court there granted a writ of review, stating that
while the "language [section 5909] appears mandatory and jurisdictional, the time periods must be
Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741
Section 4663 requires a reporting physician to make an apportionment determination; vocational apportionment is not statutorily provided (Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741).
The Board emphasized the need for proper apportionment findings and allowed parties to address vocational evidence admissibility at trial.
From the decision · page 14Subsequent to the F&A in this case, on June 23, 2023, we issued our en banc opinion in
Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 (Appeals
Board en banc) (Nunes I), and on August 29, 2024, we issued our en banc opinion denying
reconsideration of the June 23, 2023 opinion (Nunes v. State of California, Dept. of Motor Vehicles
(2023) 88 Cal.Comp.Cases 894 (Appeals Board en banc) (Nunes II). In Nunes I, we held that
section 4663 "requires a reporting physician to make an apportionment determination and
prescribes the standard for apportionment... [t]he Labor Code makes no statutory provision for
`vocational apportionment.'" (Id., at p.