Jose Banda, Jr., Applicant v. Baron HR West; Clear Spring Property and Casualty Company, Administered by Ccmsi, Defendants

Full title: JOSE BANDA, JR., Applicant v. BARON HR WEST; CLEAR SPRING PROPERTY AND…

Court: California Workers Compensation Decisions

Date published: Dec 20, 2021

ADJ14111819, ADJ14111818 (Cal. W.C.A.B. Dec. 20, 2021)

Opinion

JOSE BANDA, JR., Applicant v. BARON HR WEST; CLEAR SPRING PROPERTY AND CASUALTY COMPANY, Administered by CCMSI, Defendants Nos. ADJ14111819, ADJ14111818 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California December 20, 2021

Los Angeles District Office

OPINION AND ORDER DISMISSING PETITION FOR RECONSIDERATION AND PETITION FOR REMOVAL

JOSé H. RAZO, COMMISSIONER

We have considered the allegations of the Petition for Reconsideration and in the Alternative Petition for Removal 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 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, former § 10507(a)(1), now § 10605(a)(1) (eff Jan. 1, 2020).) 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, former § 10508, now § 10600 (eff. Jan. 1, 2020).) 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, former § 10845(a), now § 10940(a); former § 10392(a), now § 10615(b) (eff. Jan. 1, 2020).) In addition, a Petition for Reconsideration filed via EAMS¹ is deemed filed on the date received by the Appeals Board if it is received prior to 5:00 p.m. on a court day. (Cal. Code Regs., tit. 8, former § 10392, now § 10615(b) (eff. Jan. 1, 2020).) Any Petition for Reconsideration "received after 5:00 p.m. of a court day shall be deemed filed as of the next court day." (Cal. Code Regs., tit. 8, former § 10392, now § 10615(b) (eff. Jan. 1, 2020).)

1 EAMS is an acronym for Electronic Adjudication Management System, a computerized system used by the Division of Workers' Compensation (DWC) to store and maintain Appeals Board electronic case files. (See Cal. Code Regs., tit. 8, §§ 10269(p), 10215 etseq.)

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 Ace. Com. (Hinojoza) (1962) 201 Cal.App.2d 545, 549 [27 Cal.Comp.Cases 73].)

In this case, the WCJ's decision was served on September 21, 2021. Based on the authority cited above, petitioner had until Monday, October 18, 2021 to file a timely petition. Therefore, the Petition filed on October 19, 2021 is untimely and will be dismissed.

For the foregoing reasons,

IT IS ORDERED that the Petition for Reconsideration/Removal is DISMISSED.

I CONCUR DEIDRA E. LOWE, COMMISSIONER, ANNE SCHMITZ, DEPUTY COMMISSIONER