Zenith v. WCAB: California Court Rejects 20-Month Grant-for-Study Delay

Zenith Insurance Co. v. Workers’ Compensation Appeals Board, 118 Cal.App.5th 510 (2026), began with a serious workplace altercation and ultimately became a case about how quickly the Workers’ Compensation Appeals Board must act on a petition for reconsideration.

The Court of Appeal enforced Labor Code section 5909’s 60-day deadline and found no basis for equitable tolling on the record before it.

Read the published opinion on CourtListener.

A Workplace Altercation Led to a Dispute About WCAB Deadlines

Kin Chan worked as a prep cook at New Sam Kee Restaurant. In September 2020, an argument with a coworker escalated in the kitchen. The coworker struck Chan in the eye, causing a broken eye socket and other injuries. Chan sought workers’ compensation benefits.

The employer and Zenith Insurance Company invoked the initial-physical-aggressor defense under Labor Code section 3600, subdivision (a)(7).

The Workers’ Compensation Judge Denied Benefits

Witnesses gave conflicting accounts. The judge found two witnesses generally credible and determined that Chan approached his coworker angrily while holding a knife. The judge concluded that Chan was the initial physical aggressor and ordered that he take nothing.

Chan timely petitioned for reconsideration on November 18, 2022. The judge transmitted the file through EAMS on November 30, but the Board stated that it did not receive notice and review the petition until January 17, 2023.

The Board Issued a Grant-for-Study Order

On March 3, 2023, the Board issued a generic order granting reconsideration for further study. Approximately 20 months later, it rescinded the judge’s decision and found the defense unproved. Zenith and the restaurant sought review, arguing that the petition had been deemed denied under former section 5909.

The Court Enforced the 60-Day Deadline

The Sixth District held that the deadline was mandatory. Assuming equitable tolling was legally available, the facts did not justify it. The record showed no inquiry by Chan or assurances that the Board would act, and the Board did not demonstrate diligence after receiving notice. A boilerplate grant-for-study order followed by nearly 20 months of inactivity was not a narrow, unusual circumstance supporting tolling.

The court also agreed with decisions criticizing grant-for-study orders that merely state that more study is needed without identifying supporting evidence or reasons.

The Court Did Not Decide Who Started the Fight

The court reversed the Board’s November 2024 decision on procedural grounds. It did not decide whether Chan was legally the initial physical aggressor or whether the Board properly evaluated the evidence.

Practical Lessons

Parties should preserve filing proof, monitor the docket, document communications with the WCAB, and obtain prompt advice about judicial-review deadlines. Silence does not necessarily mean a petition remains pending indefinitely. Evidence of diligent follow-up may also matter when equitable relief is later requested.

The Supreme Court Will Have the Final Word

The Supreme Court has placed Zenith on hold pending Mayor. Until review ends, the case should be described as a persuasive Court of Appeal decision under review, not settled California law.