What the panel ordered
Petition for Reconsideration is dismissed as untimely and unverified.
Applicant filed a second Petition for Reconsideration after the first was dismissed as untimely; this petition was also reviewed for timeliness and verification.
This docket was decided more than once. Shown here is the latest released decision; we also hold June 12, 2023, December 10, 2021.
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.
The petition was untimely as it was filed after the statutory deadline, and it was unverified despite notice and opportunity to cure; both are jurisdictional defects requiring dismissal.
From the decision · page 2In this case, we issued our decision on June 12, 2023. Based on the authority cited above, if the time to file is extended by 10 days based on defendant's out-of-state address, applicant had until Wednesday, July 12, 2023 to seek reconsideration in a timely manner. The record here shows that applicant's petition is date stamped received on July 14, 2023, making it untimely and subject to dismissal.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's petition for reconsideration was received by the district office after the statutory deadline, as shown by the date stamp.
Favours Defendant prevailed
Filing after the deadline is a jurisdictional defect requiring dismissal.
From the decision · page 2In this case, we issued our decision on June 12, 2023. Based on the authority cited above, if the time to file is extended by 10 days based on defendant's out-of-state address, applicant had until Wednesday, July 12, 2023 to seek reconsideration in a timely manner. The record here shows that applicant's petition is date stamped received on July 14, 2023, making it untimely and subject to dismissal.
Applicant's petition was not verified and applicant did not cure the defect or provide an explanation after notice.
Favours Defendant prevailed
Verification is required by statute and regulation; failure to verify after notice is grounds for dismissal.
From the decision · page 2Here, the Petition for Reconsideration is not verified and notice of this defect was specifically in the WCJ's report. (WCJ Report, p. 3.). 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.
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 to file a petition for reconsideration from a final decision, extended by 5 or 10 days depending on service location; this time limit is jurisdictional.
Applicant's petition was filed after the extended deadline and is untimely.
From the decision · page 1There 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 or 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).) While applicant received service of the decision within California, defendant was served at an address outside of California.
Lab. Code, § 5902; Cal. Code Regs., tit. 8, § 10510(d); Lucena v. Diablo Auto Body (2000) 65 Cal.Comp.Cases 1425 (Significant Panel Decision)
A petition for reconsideration must be verified; if not, it may be dismissed after notice and opportunity to cure.
Applicant's petition was not verified and applicant did not cure the defect or provide an explanation.
From the decision · page 2Additionally, Labor Code section 5902 requires that a petition for reconsideration be verified. (Lab. Code, § 5902; see also Cal. Code Regs., tit. 8, § 10510(d).) In Lucena v. Diablo Auto Body (2000) 65 Cal.Comp.Cases 1425 (Significant Panel Decision), it was held that where a petition for reconsideration is not verified as required by section 5902, the petition may be dismissed if the petitioner has been given notice of the defect (either by the WCJ's report or by the respondent's answer) unless, within a reasonable time, the petitioner either: (1) cures the defect by filing a verification; or (2) files an explanation that establishes a compelling reason for the lack of verification and the record establishes that the respondents are not prejudiced by the lack of verification.
What proof carried it
The evidence the panel weighed, by kind.
Petition was received by the district office after the statutory deadline, as shown by the date stamp, and applicant failed to rebut this filing date.
From the decision · page 3instant Petition a United States Postal Service (USPS) tracking receipt dated February 22, 2023, with no description of the contents or recipient, to support their assertion that the first Petition was delivered by USPS on February 24, 2023. First, we note that this is still after February 8, 2023 and thus, the first petition would have still been untimely and subject to dismissal. Furthermore, the USPS receipt does not establish a contrary filing date because a petition is filed when received, and applicant has submitted no offer of proof as to receipt of the petition. (Cal. Code Regs., tit. 8, § 10615(b), (c). Applicant's first petition contains a district office "received' stamp of April 11, 2023 and applicant fails to rebut the filing date established by the receipt of the first petition by the district office.
Petition was not verified and applicant did not cure the defect or provide an explanation after notice.
From the decision · page 2Here, the Petition for Reconsideration is not verified and notice of this defect was specifically in the WCJ's report. (WCJ Report, p. 3.). 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.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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