ADJ19018827 · June 30, 2026

The petition for reconsideration was dismissed as untimely because it was not acted upon within the required timeframe and the matter was recommended to be treated as a petition to set aside the order with a hearing to create a record.

From the decision · page 1We have not received an Answer from defendant. The WCJ issued a Report and Recommendation on Petition for Reconsideration (Report), recommending that the Petition for Reconsideration (Petition) be denied for being untimely but is premature or not ripe as to whether there is "good cause" to vacate or set aside the Order. The WCJ recommends the Petition be treated as a "Petition to Vacate" or "Petition to Set Aside" and the matter be returned to the WCJ to hold hearings for a clear record to be created on whether there is "good cause" to vacate or set aside the Order or "good cause" to reinstate the Application. We have considered the allegations of applicant's Petition and the contents of the Report. Based on our review of the record and for the reasons discussed below, we will dismiss the Petition as one seeking reconsideration. Upon return of this matter to the trial level, the WCJ may treat the Petition as one to set aside the Order.

Applicant was out of the country until recently and did not appear at mandatory settlement conference or status conference.

Favours Applicant prevailed

This fact was central to the applicant's contention to set aside the dismissal order, but no evidence was admitted to support it, leading to dismissal of the petition.

From the decision · page 2FACTS We will briefly review the relevant facts. On March 20, 2024, applicant filed an Application for Adjudication of Claim (Application) and claimed to have sustained a cumulative injury to his waist and back from July 5, 2021 to February 1, 2023 while employed by defendant as a "cook, preparer and dishwasher." On February 10, 2025, defendant filed a Declaration of Readiness to Proceed (DOR) to a status conference on the issue of settlement. In the DOR, defendant stated, "[p]arties reached settlement on 12/16/2024 and Compromise and Release sent to AA but not returned despite multiple follows up. WCAB assistance requested." (Declaration of Readiness to Proceed, dated February 10, 2025.) At the status conference on April 23, 2025, the WCJ continued the hearing to a mandatory settlement conference (MSC) to June 4, 2025 and noted that applicant and applicant's attorney were not present. The WCJ also noted that applicant's attorney emailed defendant that they were having connectivity issues during the conference and that the C&R had not been returned. (Minutes of Hearing, dated April 23, 2025.) At the MSC on June 4, 2025, the WCJ took the matter off calendar and again, noted that both applicant and applicant's attorney were not present.

Labor Code section 5909

A petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board under Labor Code section 5909.

The case was transmitted to the Appeals Board on May 1, 2026, and the decision was issued on June 30, 2026, within the 60-day period.

From the decision · page 3Preliminarily, former Labor section 59091 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:

Labor Code section 5803

The Appeals Board has continuing jurisdiction to rescind, alter, or amend any order for good cause under Labor Code section 5803.

The WCAB recommended the Petition be treated as a petition to set aside the Order and hold a hearing to create a record on good cause.

From the decision · page 4II. We now turn to the merits of the Petition. Pursuant to section 5803, "[t]he appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of [Division 4]" and "[a]t any time, upon notice and after the opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor." (Lab. Code, § 5803.) WCAB Rule 10755 provides in relevant part that: Where a required party, after notice, fails to appear at a mandatory settlement conference in the case in chief:

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

Decisions must be based on admitted evidence in the record as required by Hamilton v. Lockheed Corporation (2001).

The WCJ's Order was not based on admitted evidence as no hearing or evidence was presented regarding applicant's absence or notice of hearings.

From the decision · page 5Decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Bd. en banc) (Hamilton).) The "WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Id. at p. 475.) The purpose of this requirement is to enable "the parties, and the Board if reconsideration is sought, [to] ascertain the basis for the decision[.]" (Id. at p. 476, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350].) "For the opinion on decision to be meaningful, the WCJ must refer with specificity to an adequate and completely developed record." (Ibid.)

No evidence was admitted regarding applicant's absence from the country or notice of hearings before the WCJ issued the dismissal order.

From the decision · page 5Applying the legal principles above, in the instant case, while applicant has filed a Petition for Reconsideration, it appears that in substance, applicant seeks to set aside the WCJ's Order dismissing his case because he was out of the country until recently. However, no hearing was held, no testimony was heard, and no documents were admitted into evidence before the WCJ issued the July 22, 2025 Order. Notably, there was no evidence admitted regarding applicant's assertion that he was out of the country, nor evidence about whether applicant had actually received notice of the April 23, 2025 status conference, the June 4, 2025 mandatory settlement conference, the NIT, or Order. The Order was not based on "admitted evidence in the record" as required. (Hamilton, supra, 66 Cal.Comp.Cases at p. 476.) In the absence of an evidentiary record, we are unable to evaluate the basis for the WCJ's Order.