What the panel ordered
Petition for Reconsideration is dismissed as untimely.
Petition for Reconsideration of an Order Dismissing Lien; Board reviewed the petition and WCJ report.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
Petition for Reconsideration was filed after the statutory deadline, even accounting for possible defective service and tolling due to Board error.
From the decision · page 2In this case, the WCJ issued the Order Dismissing Lien (Order) on July 21, 2022, designating defense counsel to serve the order pursuant to WCAB 10629. Defense counsel served the Order on petitioner on July 27, 2022. Based on the authority cited above, petitioner had until Monday, August 21, 2022 or, if the time to file is extended by 10 days, until Friday, August 26, 2022 to seek reconsideration in a timely manner. Even if we were to consider service defective, and calculate the time to file the Petition for Reconsideration based on date petitioner received the Order, it would still be untimely. Where the service of a decision is defective, the 20-day statutory time period for filing a petition for reconsideration begins to run when the decision is actually received. (See Hartford Acc. & Indem. Co. v. Worker's Comp. Appeals Bd. (Phillips) (1978) 86 Cal.App.3d 1, 3 [43 Cal.Comp.Cases 1193], Baker v. Worker's Comp. Appeals Bd. (2004) 69 Cal.Comp.Cases 1315, 1318 (writ den.).) In this matter, petitioner asserted that it received the order on August 9, 2022. The record here shows that petitioner filed its petition on August 30, 2022, making it untimely and subject to dismissal.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Petitioner received the Order Dismissing Lien on August 9, 2022, but did not file the Petition for Reconsideration until August 30, 2022.
Favours Defendant prevailed
This filing date was after the statutory deadline, making the petition untimely regardless of service method.
From the decision · page 2In this case, the WCJ issued the Order Dismissing Lien (Order) on July 21, 2022, designating defense counsel to serve the order pursuant to WCAB 10629. Defense counsel served the Order on petitioner on July 27, 2022. Based on the authority cited above, petitioner had until Monday, August 21, 2022 or, if the time to file is extended by 10 days, until Friday, August 26, 2022 to seek reconsideration in a timely manner. Even if we were to consider service defective, and calculate the time to file the Petition for Reconsideration based on date petitioner received the Order, it would still be untimely. Where the service of a decision is defective, the 20-day statutory time period for filing a petition for reconsideration begins to run when the decision is actually received. (See Hartford Acc. & Indem. Co. v. Worker's Comp. Appeals Bd. (Phillips) (1978) 86 Cal.App.3d 1, 3 [43 Cal.Comp.Cases 1193], Baker v. Worker's Comp. Appeals Bd. (2004) 69 Cal.Comp.Cases 1315, 1318 (writ den.).) In this matter, petitioner asserted that it received the order on August 9, 2022. The record here shows that petitioner filed its petition on August 30, 2022, making it untimely and subject to dismissal.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, §§ 5900(a), 5903; Cal. Code Regs., tit. 8, § 10605(a)(1)
There are 20 days allowed within which to file a petition for reconsideration from a 'final' decision, extended by 10 calendar days if service is made to an address outside California but within the United States.
Petitioner had until August 26, 2022 to file a timely petition; filing on August 30, 2022 was untimely.
From the decision · page 2There are 20 days allowed within which to file a petition for reconsideration from a "final" decision. (Lab. Code, § 5900(a), 5903.) This time is extended by 5 calendar days if service is made to an address within California and 10 calendar days if service is made to an address outside of California but within the United States. (Cal. Code Regs., tit. 8, § 10605(a)(1).) Defendant was served at an address outside of California.
Hartford Acc. & Indem. Co. v. Worker's Comp. Appeals Bd. (Phillips) (1978) 86 Cal.App.3d 1, 3 [43 Cal.Comp.Cases 1193], Baker v. Worker's Comp. Appeals Bd. (2004) 69 Cal.Comp.Cases 1315, 1318 (writ den.)
Where the service of a decision is defective, the 20-day statutory time period for filing a petition for reconsideration begins to run when the decision is actually received.
Even if service was defective, petitioner received the order on August 9, 2022, and still filed late.
From the decision · page 2In this case, the WCJ issued the Order Dismissing Lien (Order) on July 21, 2022, designating defense counsel to serve the order pursuant to WCAB 10629. Defense counsel served the Order on petitioner on July 27, 2022. Based on the authority cited above, petitioner had until Monday, August 21, 2022 or, if the time to file is extended by 10 days, until Friday, August 26, 2022 to seek reconsideration in a timely manner. Even if we were to consider service defective, and calculate the time to file the Petition for Reconsideration based on date petitioner received the Order, it would still be untimely. Where the service of a decision is defective, the 20-day statutory time period for filing a petition for reconsideration begins to run when the decision is actually received. (See Hartford Acc. & Indem. Co. v. Worker's Comp. Appeals Bd. (Phillips) (1978) 86 Cal.App.3d 1, 3 [43 Cal.Comp.Cases 1193], Baker v. Worker's Comp. Appeals Bd. (2004) 69 Cal.Comp.Cases 1315, 1318 (writ den.).) In this matter, petitioner asserted that it received the order on August 9, 2022. The record here shows that petitioner filed its petition on August 30, 2022, making it untimely and subject to dismissal.
What proof carried it
The evidence the panel weighed, by kind.
Petitioner asserted it received the order on August 9, 2022, but filed the petition on August 30, 2022, making it untimely.
From the decision · page 2In this case, the WCJ issued the Order Dismissing Lien (Order) on July 21, 2022, designating defense counsel to serve the order pursuant to WCAB 10629. Defense counsel served the Order on petitioner on July 27, 2022. Based on the authority cited above, petitioner had until Monday, August 21, 2022 or, if the time to file is extended by 10 days, until Friday, August 26, 2022 to seek reconsideration in a timely manner. Even if we were to consider service defective, and calculate the time to file the Petition for Reconsideration based on date petitioner received the Order, it would still be untimely. Where the service of a decision is defective, the 20-day statutory time period for filing a petition for reconsideration begins to run when the decision is actually received. (See Hartford Acc. & Indem. Co. v. Worker's Comp. Appeals Bd. (Phillips) (1978) 86 Cal.App.3d 1, 3 [43 Cal.Comp.Cases 1193], Baker v. Worker's Comp. Appeals Bd. (2004) 69 Cal.Comp.Cases 1315, 1318 (writ den.).) In this matter, petitioner asserted that it received the order on August 9, 2022. The record here shows that petitioner filed its petition on August 30, 2022, making it untimely and subject to dismissal.
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