ADJ12642822 — California WCAB decision

What the panel ordered

Petition for Reconsideration is dismissed as untimely, not from a final order, and moot.

Applicant petitioned for reconsideration of a WCJ order compelling attendance at a medical evaluation; the Appeals Board reviewed and dismissed the petition as untimely, non-final, and moot.

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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, not from a final order, and became moot after the parties resolved the underlying dispute.

From the decision · page 3II. The record reflects that on April 23, 2024, the WCJ issued an order compelling applicant to attend a medical evaluation. Applicant filed the instant Petition for Reconsideration in response. 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).) This time limit is jurisdictional and, therefore, the Appeals Board has no authority to consider or act upon an untimely petition for reconsideration.

The facts that decided it

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

Petition for Reconsideration was filed more than 25 days after service of the WCJ's order.

Favours Defendant prevailed

Jurisdictional time limit for reconsideration was not met, so the Board could not consider the petition.

From the decision · page 3II. The record reflects that on April 23, 2024, the WCJ issued an order compelling applicant to attend a medical evaluation. Applicant filed the instant Petition for Reconsideration in response. 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).) This time limit is jurisdictional and, therefore, the Appeals Board has no authority to consider or act upon an untimely petition for reconsideration.

The order appealed from was not a final order, but an interlocutory procedural order.

Favours Defendant prevailed

Only final orders are appealable; interlocutory orders are not subject to reconsideration.

From the decision · page 4Moreover, the Petition seeks reconsideration of a non-final order, and we would have dismissed it on those grounds as well. A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p.

The underlying dispute was resolved at a mandatory settlement conference before the Board acted on the petition.

Favours Defendant prevailed

The petition became moot, providing an additional ground for dismissal.

From the decision · page 4Finally, on July 10, 2024, the parties appeared for a mandatory settlement conference. According to the minutes, the parties had resolved their dispute about applicant's attendance at the medical evaluation. Since the Petition became moot, applicant should have withdrawn it, although as explained above, the Appeals Board would still have been required to review the Petition and take action on it. Nonetheless, since the Petition was not withdrawn, we note that it could have been dismissed as moot.

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); Cal. Code Regs., tit. 8, § 10600; Cal. Code Regs., tit. 8, §§ 10940(a), 10615(b); Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1076; Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1182; Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 979, 984; U.S. Pipe & Foundry Co. v. Industrial Acc. Com. (Hinojoza) (1962) 201 Cal.App.2d 545, 549

A petition for reconsideration must be filed within 25 days of service of a final order; the time limit is jurisdictional and cannot be extended by mailing alone. Only final orders determining substantive rights or threshold issues are appealable. Mootness applies if the underlying dispute is resolved before decision.

The petition was filed more than 25 days after the order, was not from a final order, and the underlying dispute was resolved, making the petition moot.

From the decision · page 3II. The record reflects that on April 23, 2024, the WCJ issued an order compelling applicant to attend a medical evaluation. Applicant filed the instant Petition for Reconsideration in response. 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).) This time limit is jurisdictional and, therefore, the Appeals Board has no authority to consider or act upon an untimely petition for reconsideration.

ADJ12642822 · January 6, 2025

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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