ADJ13110307 MARIA CALDERON BARCENAS, Applicant v. ZURICH NORTH AMERICA INSURANCE COMPANY, insurer for SABOR FARMS, Defendants

Full title: ADJ13110307 MARIA CALDERON BARCENAS, Applicant v. ZURICH NORTH AMERICA…

Court: Workers' Compensation Appeals Board State of California

Date published: Aug 25, 2023

No. ADJ13110307 (Cal. W.C.A.B. Aug. 25, 2023)

Opinion

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MARIA CALDERON BARCENAS, Applicant v. ZURICH NORTH AMERICA INSURANCE COMPANY, insurer for SABOR FARMS, Defendants No. ADJ13110307 Workers' Compensation Appeals Board State of California August 25, 2023

Salinas District Office

OPINION AND ORDER DISMISSING PETITION FOR RECONSIDERATION

JOSEPH V. CAPURRO, COMMISSIONER

We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, the petition is untimely and must be dismissed.

There are 30 days allowed within which to file a petition for reconsideration from a "final" decision that has been served by mail upon an address outside 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. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1076 [65 Cal.Comp.Cases 650]; Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1182; Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 979, 984 [46 Cal.Comp.Cases 1008]; U.S. Pipe &Foundry Co. v. Industrial Acc. Com. (Hinojoza) (1962) 201 Cal.App.2d 545, 549 [27 Cal.Comp.Cases 73].)

In this case, the WCJ issued the Findings and Award on August 15, 2022, serving it on defendant's claim administrator in Illinois. Based on the authority cited above, applicant had until

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Wednesday, September 14, 2022 to seek reconsideration in a timely manner. Therefore, the Petition for Reconsideration filed on June 26, 2023 is untimely and must be dismissed.

If the petition had been timely, we would have denied it on the merits for the reasons stated in the WCJ's report.

For the foregoing reasons,

IT IS ORDERED that the Petition for Reconsideration is DISMISSED.

I CONCUR, KATHERINE WILLIAMS DODD, COMMISSIONER, CRAIG SNELLINGS, COMMISSIONER