ADJ6840792 — California WCAB decision

What the panel ordered

Petition for Reconsideration is dismissed as untimely, unverified, and lacking proof of service.

Petition for Reconsideration of a WCJ's Findings and Order filed by applicant; Board reviews and dismisses the petition for procedural defects.

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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.

Reconsideration / removalDefendant prevailed

The petition was untimely, unverified, and filed without proof of service, all of which are jurisdictional or substantive defects requiring dismissal.

From the decision · page 2Nevertheless, while our time to act was tolled, applicant's petition was untimely filed and therefore subject to dismissal. There are 25 days allowed within which to file a petition for reconsideration from a "final" decision that has been served by mail upon an address in California. (Lab. Code, § 5900(a), 5903; Cal. Code Regs., tit. 8, § 10605(a)(1).) This time limit is extended to the next business day if the last day for filing falls on a weekend or holiday. (Cal. Code Regs., tit. 8, § 10600.) To be timely, however, a petition for reconsideration must be filed with (i.e., received by) the WCAB within the time allowed; proof that the petition was mailed (posted) within that period is insufficient. (Cal. Code Regs., tit. 8, § 10940(a); § 10615(b).)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Petition for Reconsideration was filed on June 15, 2021, but the WCJ's Findings and Order was issued on November 26, 2013, making the petition untimely.

Favours Defendant prevailed

Untimeliness is a jurisdictional bar to reconsideration.

From the decision · page 2In this case, the WCJ issued the Findings and Order on November 26, 2013. Based on the authority cited above, applicant had until Monday, December 23, 2013 to file a timely Petition for Reconsideration. Therefore, the Petition for Reconsideration filed on June 15, 2021 is untimely and must be dismissed.

Petition was not verified and petitioner did not cure the defect after notice was given.

Favours Defendant prevailed

Verification is required by statute and regulation; failure to cure after notice is grounds for dismissal.

From the decision · page 3Here, the Petition for Reconsideration is not verified and notice of this defect was specifically given in the PWCJ's June 29, 2021 Report. Moreover, a reasonable period of time has elapsed, but petitioner has neither cured the defect by filing a verification nor offered an explanation of why a verification cannot be filed.

Petition was filed without proof of service on all adverse parties.

Favours Defendant prevailed

Proof of service is a substantive requirement; omission is grounds for dismissal.

From the decision · page 3Lastly, the Petition for Reconsideration was filed without proof of service on all adverse parties as required by section 5905. (Lab. Code, § 5905; see also Cal. Code Regs., tit. 8, § 10940(c); 10625). "The failure to serve documents in a WCAB proceeding in the manner required by statute or the board's regulations is not a `mere irregularity' but rather an omission of substance which denies a fundamental right." (Hartford Acc. & Indemnity Co. v. Workers' Comp. Appeals Bd. (Phillips). (1978) 86 Cal.App.3d 1, 3 [43 Cal.Comp.Cases 1193].) Dismissal is appropriate for the failure to serve a real party in interest. (M.C.A., Inc. v. Workers' Comp. Appeals Bd. (Stott) (1981) 46 Cal.Comp.Cases 621 (writ den.); Fisher v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 517 (writ den.).)

ADJ6840792 · February 11, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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