Laura Martinez vs. Atka Enterprises, Inc./ Mcdonalds, Insurance Company Of The West

In this case, the Workers' Compensation Appeals Board dismissed the Petition for Reconsideration filed by Laura Martinez against Atka Enterprises Inc. and McDonalds, Insurance Company of the West. The petition was found to be untimely, as it was filed more than 25 days after the service of the WCJ’s November 6, 2019 decision and beyond whatever extension of time, if any, the petitioner might have been entitled to under WCAB Rule 10508. The Board also noted that if the petition had been timely, it would have been denied on the merits for the reasons stated in the WCJ's report.

Atka Enterprises, Inc./ McDonalds, Insurance Company Of the West Laura Martinez WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIALAURA MARTINEZ, Applicant,vs.ATKA ENTERPRISES INC. MCDONALDS, INSURANCE COMPANY OF THE WEST. Defendants.Case Nos. ADJ7343S99; ADJ7322244OPINION AND ORDER DISMISSING PETITION FOR RECONSIDERATION            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 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, § 10507(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, § 10508.) 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, §§ 10845(a), 10392(a).)            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, 656]; 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, 1011]; U.S. Pipe & Foundry Co. v. Industrial Acc. Com. (Hinojoza) (1962) 201 Cal.App.2d 545, 549 (27 Cal.Comp.Cases 73, 75-76].)            The petition in this matter was filed on December 4, 2019. This was more than 25 days after the service of the WCJ’s November 6, 2019 decision and beyond whatever extension of time, if any, the ,

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