Authorities as the decision cited them, with how this panel applied each one.
Shipley v. Workers' Comp. Appeals Bd. (1991) 7 Cal.App.4th 1105
Petitions for reconsideration must be acted upon within 60 days of filing, but this time may be tolled if the petition is not received by the Appeals Board due to administrative irregularity, to preserve due process rights (Shipley v. WCAB).
The Appeals Board tolled the 60-day period due to administrative irregularity in receiving the petition, preserving the lien claimant's right to reconsideration.
From the decision · page 2Section 5909 provides that a petition for reconsideration is deemed denied unless the
Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) However, "it is
a fundamental principle of due process that a party may not be deprived of a substantial right
without notice...." (Shipley, supra, 7 Cal.App.4th at p. 1108; see Rea v. Workers' Comp. Appeals
Bd. (2005) 127 Cal.App.4th 625, 635 fn. 22 [70 Cal.Comp.Cases 312] ["irregularity which
deprives reconsideration under the statutory scheme denies due process"].) In Shipley, applicant
sought a writ of review of a decision of the Appeals Board denying his petition for reconsideration
by operation of law (Lab. Code, § 5909). The Court there granted a writ of review, stating that
while the "language [section 5909] appears mandatory and jurisdictional, the time periods must be
based on a presumption that a claimant's file will be available to the board; any other result
deprives a claimant of due process and the right to a review by the board." (Shipley, supra, 7
Cal.App.4th at pp. 1107-1108, italics added.)
WCAB Rule 10974
WCAB Rule 10974 limits consideration of newly discovered evidence in petitions for reconsideration to evidence that could not have been produced before submission or was procured by fraud, requiring a specific offer of proof and explanation.
The petition failed to provide the required offer of proof and explanation for newly discovered evidence, so the attachments were not considered.
From the decision · page 4We begin our discussion by noting that the Petition describes "new discovery" and attaches
nine documentary exhibits to the Petition. (Petition, at p. 2.) However, it is not clear from the
petition whether lien claimant avers it is newly discovered evidence. To the extent the attachments
to the petition are offered as newly discovered evidence, WCAB Rule 10974 provides that such
evidence will only be considered on the grounds that it could not, with reasonable diligence, have
been produced before submission of the case, or on the ground that the decision had been procured
by fraud. (Cal Code Regs., tit. 8, § 10974.) Moreover, WCAB Rule 10974 requires that the petition
contain an "offer of proof, specific and detailed" providing information as to the evidence to be
offered, as well as a "full and accurate statement of the reasons why the testimony or exhibits could
not reasonably have been discovered or produced before submission of the case." (Cal. Code
Regs., tit. 8, § 10974(e).) Here, petitioner offers no explanation of why the attached
documentation could not have been produced before submission of the case, or why such
documentation was procured by fraud.
WCAB Rule 10940(c)
WCAB Rule 10940(c) requires petitions and answers to be verified and served on all adverse parties, with failure to comply constituting grounds for dismissal.
The petition was unverified and not served on all adverse parties, grounds for dismissal under this rule.
From the decision · page 5We also observe that all petitions for reconsideration must be served on all adverse parties.
(See Lab. Code § 5905.) Here, lien claimant failed to serve the Petition on defendant employer, an
adverse party. The failure to properly serve all adverse parties may constitute grounds for dismissal
of the petition. (See State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Paquette)
(1983) 48 Cal.Comp.Cases 475 [1983 Cal. Wrk. Comp, LEXIS 3831] (writ den.).)