Applicant Kin Chan started a fight in the restaurant kitchen where he worked and was injured. He filed a workers’ compensation claim. The workers’ compensation judge found there was no coverage because Chan was the initial physical aggressor. Chan filed a petition for reconsideration, which is functionally an appeal to the Workers’ Compensation Appeals Board (WCAB).
Although Labor Code section 5909 requires the WCAB to rule on petitions for review within 60 days, the WCAB purported to toll its own deadline and, two years later, issued a decision reversing the trial judge’s findings.
Horvitz & Levy worked with the workers’ compensation insurer Zenith to file a writ petition challenging the WCAB’s decision as untimely. The question whether the WCAB may toll its 60-day deadline has divided the Courts of Appeal and is currently pending before the California Supreme Court.
Horvitz & Levy persuaded the Sixth District to place important limits on a prior opinion it had issued approving one type of tolling. The Sixth District held, in a published opinion, that equitable tolling was not appropriate here. The Sixth District therefore reversed the WCAB’s decision and reinstated the trial judge’s order finding no workers’ compensation coverage.
Chan v. Zenith 
