Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909(b)(1) and (2)
Parties must be provided notice of transmission of the case to the Appeals Board.
Service of the Report and Recommendation was held to provide notice to the parties.
From the decision · page 3Section 5909(b)(1) requires that the parties and the Appeals Board be provided with
notice of transmission of the case. Transmission of the case to the Appeals Board in EAMS
provides notice to the Appeals Board. Thus, the requirement in subdivision (1) ensures that
the parties are notified of the accurate date for the commencement of the 60-day period for
the Appeals Board to act on a petition. Section 5909(b)(2) provides that service of the
Report and Recommendation shall be notice of transmission.
Labor Code section 5909(a)
Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.
The decision was issued on the 60th day after transmission, thus timely acting on the petition.
From the decision · page 3Under section 5909(a), the Appeals Board must act on a petition for reconsideration
within 60 days of transmission of the case to the Appeals Board. Transmission is reflected
in Events in the Electronic Adjudication Management System (EAMS). Specifically, in
Case Events, under Event Description is the phrase "Sent to Recon" and under Additional
Information is the phrase "The case is sent to the Recon board."
Labor Code section 5905; Cal. Code Regs., tit. 8, 10940
Petitioners must serve the petition on all adverse parties; failure to file proof of service may result in dismissal.
Applicant failed to serve the petition at the correct addresses, leading to admonishment and dismissal.
From the decision · page 4II.
Preliminarily, we observe that section 5905 requires the party seeking
reconsideration to serve the petition upon all adverse parties. (§ 5905.) Failure to file proof
of service may constitute grounds for dismissing the petition. (Cal. Code Regs., tit. 8, § 10940.)
Here, the Petition indicates that it was mailed to Union Bank at 1251 Avenue Of
The Americas, New York, NY 10020, Gallagher Bassett at P.O. Box 85013, San Diego,
CA, 92186, and defendant's attorney Wai Connor at 2255 Contra Costa Blvd., Pleasant
Hill, CA 94523. (Petition for Reconsideration, p. 3.) These addresses do not conform with
those in the OAR, which lists Union Bank's address as 2000 Portola Ave, Livermore, CA
94551; Gallagher Bassett's as P.O. Box 2934, Clinton, IA 52733, and Wai Connor's as
2566 Overland Ave, Ste. 570, Los Angeles, CA 90064.
Therefore, we admonish applicant to comply with all service requirements
applicable to these proceedings.
Labor Code section 5803
The Appeals Board has continuing jurisdiction to rescind, alter, or amend any order for good cause.
The Board noted the continuing jurisdiction but found no evidence of good cause to set aside the OACR.
From the decision · page 4(See § 5905.)
Pursuant to section 5803, "The appeals board has continuing jurisdiction over all
its orders, decisions, and awards made and entered under the provisions of [Division 4]...
At 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." (§ 5803.) This continuing jurisdiction includes authority to set
aside an award more than five years after the date of injury based upon good cause shown.
(See Smith v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 1160 [50
Cal.Comp.Cases 311].)
A showing of good cause to set aside an award may be based upon fraud, duress,
undue influence, mutual mistake of fact, mistake of law, invalidity of execution,
incompetency, or minority at the time of execution of the agreement. (See California
Workers' Compensation Law (Cont. Ed. Bar 4th Ed.) § 16.61 et seq.; see also Argonaut
Ins. Exch. v. Industrial Acc. Com. (1958) 49 Cal.2d 706 [23 Cal.Comp.Cases 34]; Smith,
supra; Carmichael v. Industrial Acc. Com. (1965) 234 Cal.App.2d 311 [30
Cal.Comp.Cases 169]; Silva v. Industrial Acc. Com. (1924) 68 Cal. App. 510; City of