California Labor Code § 5905

Determinative passage · p.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.

Applicant failed to serve the petition at the correct addresses, leading to admonishment and dismissal.

Determinative passage · p.3Finally, we note that applicant failed to serve his former counsel with his Petition for Reconsideration. Since applicant raises the issue of the amount of attorney's fees to be paid to his attorneys, this is an error in violation of Labor Code section 5905. Thus, we separately serve a copy of applicant's Petition on his former attorneys.

The WCAB noted applicant failed to serve former counsel, but separately served them to comply with the statute.

Determinative passage · p.6Pursuant to section 5905, a party petitioning for reconsideration is required to serve a copy of the petition "forthwith upon all adverse parties." (Lab. Code § 5905.) Cost petitioner served the Petition on defendant's administrator Omaha and defendant's former attorneys CW Law. As the WCJ and defendant's legal representative assert, defendant's current legal representative was not served with the petition. 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.).)

The WCAB found that service was made on defendant's administrator and former attorneys but not on current legal representative; however, the failure did not prejudice defendant's ability to respond.

Determinative passage · p.2Nevertheless, while our time to act was tolled, applicant's petition was untimely filed and therefore subject to dismissal. 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, § 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).)

Applied to dismiss the petition as untimely, unverified, and lacking proof of service.