ADJ972712 — California WCAB decision

What the panel ordered

Petition for Reconsideration and Petition for Disqualification are dismissed as untimely and insufficient.

Applicant filed a Petition for Reconsideration and Petition for Disqualification regarding the December 5, 2023 First Amended Findings and Award issued by the WCJ.

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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 for disqualification did not set forth facts under penalty of perjury sufficient to establish disqualification and was untimely under WCAB Rule 10960.

From the decision · page 3WCAB Rule 10960, and Code of Civil Procedure section 641(f) and/or (g). Moreover, the petition is untimely pursuant to WCAB Rule 10960. Accordingly, the request for disqualification is also dismissed.

Reconsideration / removalDefendant prevailed

The Petition for Reconsideration was filed after the statutory deadline and is therefore untimely; the Appeals Board has no authority to consider an untimely petition.

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), 10600, 10940(a), 10615(b)

A petition for reconsideration must be filed within 25 days of a final decision served by mail upon an address in California; the time limit is jurisdictional and cannot be extended by proof of mailing.

Applied to dismiss the untimely Petition for Reconsideration.

From the decision · page 1There 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).)

Lab. Code § 5311; Code Civ. Proc. § 641; Cal. Code Regs., tit. 8, § 10960

A petition for disqualification must be supported by an affidavit or declaration under penalty of perjury stating facts establishing grounds for disqualification and must be filed within 10 days after service of notice of hearing or after grounds are known.

Applied to dismiss the insufficient and untimely Petition for Disqualification.

From the decision · page 2Under WCAB Rule 10960, proceedings to disqualify a WCJ "shall be initiated by the filing of a petition for disqualification supported by an affidavit or declaration under penalty of perjury stating in detail facts establishing one or more of the grounds for disqualification...." (Cal. Code Regs., tit. 8, former § 10452, now § 10960 (eff. Jan. 1, 2020), italics added.) It has long been recognized that "[t]he allegations in a statement charging bias and prejudice of a judge must set forth specifically the facts on which the charge is predicated," that "[a] statement containing nothing but conclusions and setting forth no facts constituting a ground for disqualification may be ignored," and that "[w]here no facts are set forth in the statement there is no issue of fact to be determined." (Mackie v. Dyer (1957) 154 Cal.App.2d 395, 399, italics added.)

ADJ972712 · March 12, 2024

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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