WCAB PROCEDURE - Petition to reopen–A change of law by judicial interpretation of a statute has long been found to constitute good cause to reopen a prior decision. (See State Compensation Ins. Fund v. Industrial Accident Commission (Dean) (1946) 73 Cal.App. 2d 248.) In a case of first impression, the Appeals Board concluded that a change of law by an Appeals Board en banc decision constituted good cause to reopen a prior decision. [In this case, employer asserted a change in the law enunciated in the en banc decision in Pendergrass II (Pendergrass v. Duggan Painting (2007) 10 WCAB Rptr. 10,118.] Rosalina Gonzalez v. Workers' Compensation Appeals Board, Fresh International Corp. 10 WCAB Rptr. 10,064 [Writ Denied]

WCAB PROCEDURE - Verification of petition for reconsideration–Labor Code §5902–Lack of verification is not a jurisdictional requirement, which mandates dismissal and the defect can be cured by later filing of the verification. (See Wings West Airlines v. Workers' Comp. Appeals Bd. (Nebelon) (1986) 187 CalApp.3d 1047.) There is a strong public policy favoring the disposition of cases on their merits. (See Bland v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 324.) [In this case, notwithstanding the lack of verification, the Appeals Board concluded it was appropriate to address the merits of the petition because there was no substantial dispute about the evidence and the opposing party did not raise a concern about the lack of verification.] [Writ Denied]

PETITION FOR RECONSIDERATION - Petition for reconsideration of an Opinion and Order of an Appeals Board panel must be filed with the Reconsideration Unit of the Appeals Board in San Francisco office. A petition for reconsideration timely but mistakenly filed in the San Francisco District Office should be deemed timely filed for jurisdictional purposes. [See Shipley v. Workers' Comp. Appeals Bd. (1972) 7 Cal.App.4th 1104.) County of Orange v. Workers' Compensation Appeals Board (Jack Lean) 10 WCAB Rptr. 10,055 ___Cal.App.4th___

WCAB PROCEDURE - Petition for reconsideration of amended findings and award–If the amendment of the award is determined to result from clerical error, a petition for reconsideration must be filed within 20 days of the original findings and award. If the amendment is determined to constitute a substantial or material change in the award, then the petition for reconsideration must be filed within 20 days of the amended findings and award. (See Nestle Ice Cream Co. v. Workers' Comp. Appeals Bd. (Ryerson ) (2007) 146 Cal.App.4th 1104, 9 WCAB Rptr. 10,214.) Dianne Fitzpatrick v. Workers' Compensation Appeals Board, Montessori of Placerville 10 WCAB Rptr. 10,042 ___Cal.App.4th___

WCAB PROCEDURE - Petition for reconsideration–Delivery by fax to a District Office of the Appeals Board does not constitute timely filing of a petition for reconsideration. (See Cal. Code of Regs., title 8 §10391.) [Writ Denied]

WCAB PROCEDURE - Petition for reconsideration–Labor Code §5900–An order directing the parties to develop the record further is an interim order that does not determine the subjective rights or liabilities of the parties and is not subject to a petition for reconsideration. East Bay Municipal Utility District v. Workers' Compensation Appeals Board, Bay Area Surgery Center (Deborah Thompson) 10 WCAB Rptr. 10,033 [Writ Denied]

WCAB PROCEDURE - Time for filing petition for reconsideration–The 25 days allowed in which to file a petition for reconsideration from a final decision is jurisdictional and the Appeals Board lacks power to grant an untimely petition. (See Rymer v. Hegler (1989) 211 Cal.App.3d 1171, Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 979.) Michael Dao dba West Dental v. Workers' Compensation Appeals Board, (Maria Vasquez) 10 WCAB Rptr. 10,032 [Writ Denied]

WCAB PROCEDURE - Petition for reconsideration–Labor Code §5900–An order awarding medical-legal expenses is an order to pay money and is final as to that issue, which is severable from the merits of the case, and a petition for reconsideration is the proper remedy to review the order. (See Turudich v. Industrial Acc. Com. (1965) 237 Cal.App.2d 455.) C&J Contracting v. Workers' Compensation Appeals Board (Larry Anecito) 10 WCAB Rptr. 10,015[Writ Denied]

WCAB PROCEDURE - Petition for Reconsideration-Labor Code §5900-Reconsideration may be had only for a final order, decision or award. WCJ's pretrial orders regarding evidence, discovery, trial setting and/or venue are interlocutory orders that do not determine the substantive rights of the parties, and therefore are not final orders subject to reconsideration. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) Southern California Mental Health & Assessment Centers v. Workers' Compensation Appeals Board (Norik Madadian) 9 WCAB Rptr. 10,366 [Writ Denied]

WCAB PROCEDURE - Service of Petition for Reconsideration-Labor Code §5905 and California Code of Regulations, Title 8 §10393, 10150 10850-Where a party is represented by counsel, a petition for reconsideration must be served on counsel at counsel's address of record. Improper service of the petition for reconsideration constituted an alternative basis for denying reconsideration. (In this case, a change of address was filed and the old address was used. The WCJ's Report and Recommendation pointed this out and the defendant did not cure the service defect.) Securitas Security Services v. Workers' Compensation Appeals Board (Ricardo Testa) 9 WCAB Rptr. 10,315 [Writ Denied]

WCAB PROCEDURE - Petition for reconsideration-Labor Code §5903 provides that any party aggrieved by a WCJ's final decision may petition for reconsideration within 20 days after the service of the decision. The time limit is jurisdictional and the Appeals Board may not grant an untimely petition. See Ramsey v. Workmen's Comp. Appeals Bd. (1971) 18 Cal.App.3d 155.) Ordinarily, passage of 60 days without action by the Appeals Board would be a denial of the petition for reconsideration by operation of law. (See Labor Code §5905.) But when, due to a clerical error by the Appeals Board, 60 days elapsed from the date the petition was filed without the Appeals Board having issued a decision, the Appeals Board error should not affect the statutory and due process rights of the parties to have their petitions considered on the merits. (See Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104.) [Writ Denied]

WCAB PROCEDURE - Petition for reconsideration-Labor Code §5900-A petition for reconsideration may be filed only with respect to a final decision, order or award. See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) [In this case, the WCJ's ruling to supplement the medical record by appointment of an independent medical expert to evaluate permanent diability and the internal medicine aspects of applicant's injury was not a final order and did not determine a substantive issue.] Harold B. Gonzalez v. Workers' Compensation Appeals Board, County of Santa Clara 9 WCAB Rptr. 10,138[Writ Denied]

WCAB PROCEDURE - Petition for reconsideration-Labor Code §5900-A petition for reconsideration can be made only from a final Order, Decision or Award. A final order is one that conclusively determines a substantial issue basic to the employee's entitlement to benefits. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) [The order in this case involved compelling the applicant to attend a vocational rehabilitation evaluation and the conditions under which the evaluation would be conducted.] Christina Keefe-Zarate v. Workers' Compensation Appeals Board, FPA Management 9 WCAB Rptr. 10,301 [Writ Denied]

WCAB PROCEDURE - Petition for Reconsideration-Did the Appeals Board violate Labor Code §5900 by issuing an Opinion and Order Granting Reconsideration and Decision after Reconsideration after all administrative remedies had previously been exhausted? City of Chico v. Workers' Compensation Appeals Board (Daphanie Burnham) 9 WCAB Rptr. 10,279 [Writ Granted]

WCAB PROCEDURE -Decision on reconsideration–The Appeals Board is the ultimate finder of fact. On reconsideration, it is empowered to re-evaluate the record, to reject the findings of the WCJ, and to enter its own findings, provided that its findings are supported by substantial evidence. (See Lamb v. Workers' Comp. Appeals Bd. (1974) 11 Cal.3d 274.) Larry Morris v. Workers' Compensation Appeals Board, Interstate Brands 9 WCAB Rptr. 10,266[Writ Denied]

WCAB PROCEDURE - Petition for reconsideration–Labor Code §5900–A petition for reconsideration is properly taken only from a final order, decision or award. A final order is defined as one that determines any substantive right of liability of those involved in the case. (See Rymer v. Hagler (1989) 211 Cal.App.3d 1171.) Interlocutory procedural or evidentiary decisions are not considered to be final orders because they do not determine any substantive issue. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 2 WCAB Rptr. 10,251.) [In this case, the assignment of a qualified medical evaluator pursuant to Labor Code §4062 did not determine the substantive rights of the parties.] Jose Luis Alvarado v. Workers' Compensation Appeals Board, Ruskin Manufacturing 9 WCAB Rptr. 10,267[Writ Denied]

WCAB PROCEDURE - Petition for reconsideration–Cal. Code of Regs, Title 8, §10510 requires the service of WCJ decisions only on a party's attorney where the party is represented. Therefore, the applicant has 20 days from his actual receipt of the WCJ's decision within which to file has petition for reconsideration. (See Hartford Accident & Indemnity Co. v. Workers' Comp. Appeals Bd. (Phillips) (1978) 86 Cal.App.3d 1.) Steve Ghane v. Workers' Compensation Appeals Board, Leviton, Diaz & Ginocchio 9 WCAB Rptr. 10.268[Writ Denied]

PETITION FOR RECONSIDERATION - Petition for reconsideration of an Opinion and Order of an Appeals Board panel must be filed with the Reconsideration Unit of the Appeals Board in the San Francisco office. Should a petition for reconsideration timely but mistakenly filed in the San Francisco District Office be deemed timely filed for jurisdictional purposes? County of Orange v. Workers' Compensation Appeals Board (Jack Lean) 9 WCAB Rptr. 10,246 [Writ Granted]

WCAB PROCEDURE - Grounds of reconsideration-Labor Code §5903 sets forth the grounds for reconsideration: (1) WCJ or Appeals Board acted in excess of its powers, (2) the order was obtained by fraud, (3) the evidence does not justify the findings of fact, (4) the petitioner has newly discovered evidence, and (5) the findings of fact do not support the order. The role of the Appeals Board on reconsideration is to correct errors at the trial level and may not grant reconsideration merely because the outcome of the trial was unfavorable to the petitioner or because the petitioner would like to retry the case with the benefit of counsel. Lamar A. Sharp v. Workers' Compensation Appeals Board, AT&T 9 WCAB Rptr. 10,249 [Writ Denied]

WCAB PROCEDURE - Petition for Reconsideration–Labor Code §5909–Ordinarily, a petition for reconsideration is deemed denied by operation of law if the Appeals Board fails to act within 60 days from the date of filing. However, when a timely filed petition for reconsideration does not reach the Appeals Board until after the 60-day period has already expired through no fault of the petitioner, the petition will not be deemed denied by operation of law. (See Shipley v. Workers' Comp. Appeals Bd. (1972) 7 Cal.App.4th 1104.) [Writ Denied]

WCAB PROCEDURE - Petition for Reconsideration–Labor Code §5900–An order relieving CIGA from its obligation to administer applicant's stipulated award is a final order, because it resolves the issue of the rights and obligations of CIGA and the solvent carrier with regard to the administration of applicant's benefits. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) Russell Mechanical v. Workers' Compensation Appeals Board (Donald Latimore) 9 WCAB Rptr. 10,230 [Writ Denied]

WCAB PROCEDURE - Petition for Reconsideration–Labor Code §5905–A petition for reconsideration must be served on all adverse parties and the petition must be accompanied by a proof of service. The failure to properly serve a petition for reconsideration is not a jurisdictional defect. (See Wings West Airlines v. Workers' Comp. Appeals Bd. (Nebolon) (1986) 187 Cal.App.3d 1047.) Lizzie Miller v. Workers' Compensation Appeals Board, County of Sacramento 9 WCAB Rptr. 10,229 [Writ Denied]

WCAB PROCEDURE - Petition for Reconsideration–Labor Code §5900–Twenty-five days are allowed to file a petition for reconsideration from a final decision served by mail on a party at an address in California. Pursuant to Board Rule 10390, documents filed by mail are deemed to have been filed on the date received by the Appeals Board. A petition for reconsideration to be timely filed must have actually been received by the Appeals Board within the statutory period. (See County of Lake v. Workers' Comp. Appeals Bd. (Helbush) (1984) 49 Cal.Comp.Cases 627 [writ denied].) Suzanne Le Franc Sheppard v. Workers' Compensation Appeals Board, City of Needles 9 WCAB Rptr. 10,228 [Writ Denied]

WCAB PROCEDURE - Petition for Reconsideration–Labor Code §5900–The time limit for filing a petition for reconsideration is jurisdictional. The Appeals Board lacks power to grant an untimely petition for reconsideration. (See Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 979.) United D & D Corp. v. Workers' Compensation Appeals Board (Atrich Lotfi) 9 WCAB Rptr. 10,228 [Writ Denied]

WCAB PROCEDURE - Petition for reconsideration–California Code of Regulations, Title 8 §10840–Petitions for reconsideration from final orders, decisions or awards and answers thereto shall be filed in the district office of the Workers' Compensation Appeals Board from which the order decision or award is issued. Petitions for reconsideration from final orders, decisions or awards issued by the Appeals Board in San Francisco and answers thereto shall be filed at the office of the Appeals Board in San Francisco. Ramallah, Inc. v. Workers' Compensation Appeals Board (Carol McKinley) 9 WCAB Rptr. 10,215 ___Cal.App.4th___

WCAB PROCEDURE - Petition for Reconsideration-Labor Code §5900-Reconsideration can be had only with respect to a final order. A final order has been defined as one which determines a substantive right or liability of those involved in the case. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) In this case applicant filed a petition for reconsideration with respect to an order requiring applicant to attend two QME evaluations pursuant to Labor Code §5703.5, which is not determinative of a substantive righ and is an order to develop the record which is not a final order. (See Elwood v. Workers' Comp. Appeals Bd. (2001) 3 WCAB Rptr. 10,030 [writ denied] Kristian Von Ritzhoff v. Workers' Compensation Appeals Board, Broadspire Ogden Entertainment 9 WCAB Rptr. 10,194 [Writ Denied]

WCAB PROCEDURE - Petition for Reconsideration–Once reconsideration has been granted, the Appeals Board has the power to make new and different findings than those made at the trial level, even with respect to issues not raised in the petition for reconsideration. (See Great Western Power Co. v. Industrial Acc. Com.(Savercool) (1923) 191 Cal. 724; State Comp. Ins. Fund v. Industrial Acc. Com (George) (1954) 124 Cal.App.2d 201.) [In this case, the issue raised on reconsideration was related to the calculation of permanent disability. The WCJ found that applicant was in need of further medical treatment, but the award did not include a provision for further medical treatment. The WCAB panel corrected this clerical error even though it was not raised on reconsideration.] Bernadette Hernandez v. Workers' Compensation Appeals Board, American Medical Response 9 WCAB Rptr. 10,178 [Writ Denied]

WCAB PROCEDURE - Petition for reconsideration–Labor Code §5900–Reconsideration may be had only of a final order, decision or award. Interlocutory procedural orders are not final orders. (See Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528.) [In this case, the WCJ issued a discovery order stating that the applicant should "cooperate with discovery and with regard to his deposition particularly," and to provide a doctor's report for the court on his mental capacity.] Nikiforos P. Kalfountzos v. Workers' Compensation Appeals Board, City of Sacramento 9 WCAB Rptr. 10,161 [Writ Denied]

WCAB PROCEDURE - Filing of petition for reconsideration–When a petition for reconsideration was timely filed with the district office of the Appeals Board on the first floor of the State Building in San Francisco and not transferred to the Reconsideration Unit of the Appeals Board on the ninth floor until after filing deadline, this procedural irregularity should have been dealt with by the Board on its own motion deeming the petition to have been timely filed. Scott Pontiac GMC v. Workers' Compensation Appeals Board (Robert Olsen) 9 WCAB Rptr. 10,091 ___Cal.App.4th___

WCAB PROCEDURE - Petition to reopen for new and further injury–Labor Code §5410–To demonstrate good cause to reopen a workers' compensation claim, the new evidence must: (1) present some good ground not previously known to the Appeals Board, which renders the original award inequitable, (2) be more than merely cumulative or a restatement of the original evidence or contentions, and (3) be accompanied by a showing that such evidence could not with reasonable diligence have been discovered and produced at the original hearing. (See Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (1980) 109 Cal.App.3d 941.) Wal-Mart Stores, Inc. v. Workers' Compensation Appeals Board (Cherrie Collier) 9 WCAB Rptr. 10,073 ___Cal.App.4th___

WCAB PROCEDURE - Petition for reconsideration-Labor Code §5900-Interlocutory procedural orders are not final orders from which reconsideration may be sought. (See Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39.) [The order in this case was procedural in nature insofar as it addressed a discovery matter on whether certain medical experts could view a sub rosa video of applicant.] WCAB PROCEDURE - Petition to disqualify a WCJ-Labor Code §5311 provides that any party to a proceeding may object to the referral of the proceeding to a particular WCJ on one or more grounds specified in Code of Civil Procedure §641. If grounds for disqualification of the WCJ are known, the petition to disqualify should be filed no later than 10 days after service of notice of hearing. In no event is a petition allowed after the swearing of the first witness. Kristian Von Ritzhoff v. Workers' Compensation Appeals Board, Ogden Entertainment Services 9 WCAB Rptr. 10,068 [Writ Denied]

WCAB PROCEDURE - Petition for reconsideration–Labor Code §5900–A petition for reconsideration is properly taken only from a final order, decision or award. A final order has been defined as one that determines any substantive right or liability of the parties involved in the case. (See Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528.)Pretrial orders on evidence, discovery, trial setting, venue or similar issue are non-final interlocutory orders that do not determine any substantive right of the parties. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) [In this case, an order for consolidation was a non-final order not subject to a petition for reconsideration.] Michael O'Connor v. Workers' Compensation Appeals Board, Lockheed Martin 9 WCAB Rptr. 10,063[Writ Denied]

WCAB PROCEDURE - Petition for reconsideration–Labor Code §5904–The petitioner for reconsideration shall be deemed to have finally waived all objections, irregularities and illegalities concerning the matter upon which the reconsideration is sought other than those set forth in the petition for reconsideration. Carl McReynolds v. Workers' Compensation Appeals Board, Liberty Mutual Fire Insurance Company 9 WCAB Rptr. 10,066 [Writ Denied]

WCAB PROCEDURE - Petition for Reconsideration–Labor Code §5900–When an award is amended by a WCJ before a petition for reconsideration is filed, the time for seeking reconsideration runs from the date of the original order when the amendment is clerical in nature. When the amendment effects a substantial or material change in the award or involves the exercise of a judicial function or judicial discretion, the time runs instead from the date of the amended order. [In this case, the amendment of the award to correctly state the names of the parties and to increase the temporary disability indemnity to the correct rate were substantial and material changes in the award and amounted to a judicial act, rather than the mere correction of a clerical error.] Nestle Ice Cream Company, LLC v. Workers' Compensation Appeals Board (Ken Ryerson) 9 WCAB Rptr. 10,024 ___Cal.App.4th___

WCAB PROCEDURE - Petition for reconsideration—Labor Code §5900—Reconsideration may be had only of a final order, decision or award. Interlocutory procedural orders are not final orders within the meaning of Labor Code §5900. An order that does not dispose of the substantive rights or liabilities of those involved in the case is not a final order. A "final" order has been defined as one "which determines any substantive right or liability." (See Marian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251].)

WCAB PROCEDURE - Petition for reconsideration—Labor Code §5900—Pretrial orders regarding evidence, discovery, trial setting and/or venue are interlocutory orders which do not determine substantive rights of the parties, and therefore are not final orders subject to reconsideration. (See Jablonski v. Workers' Comp. Appeals Bd. (1987) 52 Cal.Comp.Cases 299 [writ denied].)

WCAB PROCEDURE - Petition for reconsideration–Labor Code §5900–An order to appear at a medical evaluation is not determinative of a substantive right; it is an order to develop the record which is not a final order. (See Elwood v. Workers' Comp. Appeals Bd. (2001) 3 WCAB Rptr. 10,060 [writ denied].) Kristian Von Ritzhoff v. Workers' Compensation Appeals Board, Ogden Entertainment Services 8 WCAB Rptr. 10,342 [Writ Denied]

WCAB PROCEDURE-Petition for reconsideration—A petition for reconsideration is deemed to have been denied by the Appeals Board unless it is acted upon within 60 days from the date of filing. (See Labor Code§5905.) While the statutory language appears mandatory and jurisdictional, a petition for reconsideration will not be deemed denied by operation of law when, through no fault of the petitioner, the file is misplaced by the Appeals Board. (See Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App. 4th 1104.) Mercy General Hospital v. Workers' Compensation Appeals Board (Mary Ellen Navi) 8 WCAB Rptr. 10,325 [Writ Denied]

WCAB PROCEDURE - Petition for reconsideration–Labor Code §5903–Amended findings and award that correct clerical errors and do not alter the substance of the original decision did not start a new period for filing a petition for reconsideration. (See City of Concord v. Workers' Comp. Appeals Bd. (Bullock) (1998) 63 Cal.Comp.Cases 1522 [writ denied].) City of Hayward v. Workers' Compensation Appeals Board (Patrick Douglas) 8 WCAB Rptr. 10,294 [Writ Denied]

WCAB PROCEDURE-Petition for Reconsideration–Labor Code §5900(a)–A petition for reconsideration can challenge only a final order, decision or award. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) Zurich U.S. v. Workers' Compensation Appeals Board (Jack Hablian) 8 WCAB Rptr.10,240 [Writ Denied]

WCAB PROCEDURE-Petition for Reconsideration–When service of the final order, decision or award is defective, the period in which to file for reconsideration begins on the date the aggrieved party or its counsel actually receives the order, decision or award. (See Hartford Accident & Indemnity Co. v. Workers' Comp. Appeals Bd. (Phillips) (1978) 86 Cal.App.3d 1.)California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Amie Norwood) 8 WCAB Rptr. 10,165 [writ denied]

WCAB PROCEDURE-Petition for reconsideration–Labor Code §5900–Twenty days are allowed to file a petition for reconsideration from a final decision that has been personally served on a party or where a party obtains the decision from its mailbox maintained in the district office of the Workers' Compensation Appeals Board for outgoing documents. The time for filing a petition may be extended an additional five days if service is by mail in the state of California. The time limit for filing a petition for reconsideration is jurisdictional. (See Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 979.)Jan R. Rickard v. Workers' Compensation Appeals Board, Simpson Paper 8 WCAB RPtr. 10,163 [writ denied]

WCAB PROCEDURE-Petition for Reconsideration–Labor Code §5900–A petition for reconsideration may be made only with respect to final orders, decisions and awards that determine any substantial right or liability of those involved in the case. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) Pretrial orders on evidence, discovery, trial setting and/or venue are interlocutory orders, which do not determine substantive rights of parties and are not final orders subject to reconsideration. Christopher Electric Co. v. Workers' Compensation Appeals Board (David Hayden) 8 WCAB Rptr. 10,163 [writ denied]

WCAB PROCEDURE-Petition for Reconsideration-When service on the defendant is defective, the time for the defendant to seek reconsideration begins to run when the WCJ's decision is received by the defendant. (See Hartford Accident & Indemnity Co. v. Workers' Comp. Appeals Bd. (1978) 86 Cal.App.3d 1.) Chapparral Construction & Development v. Workers' Compensation Appeals Board (John Birges) 8 WCAB Rptr. 10,197 [Writ Denied]

WCAB PROCEDURE-Petition to reopen-Applicant's technically deficient Petition to Reopen, which did not specify the facts on which it relied, filed within five years of the date of injury was adequate to preserve the jurisdiction of the Appeals Board to reopen the case after the five-year period elapsed, because it gave adequate notice that it was based on alleged increased disability. (See Blanchard v. Workers' Comp. Appeals Bd. (1975) 53 Cal.App.3d 590.) California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Shirley Winters) 8 WCAB Rptr. 10,197 [Writ Denied]

WCAB PROCEDURE-Petition for Reconsideration–Labor Code §5900–When the evidence produced by the parties is not complete enough to permit the WCJ to determine the precise amount of the benefit, the WCJ may award the benefit "in an amount to be determined by the WCJ if the parties are unable to adjust the matter amount themselves." Until the parties make a reasonable attempt to resolve the matter, they cannot complain by way of a petition for reconsideration that the award was improper. (See Hodge v. Workers' Comp. Appeals Bd. (1981) 123 Cal.App.3d 501.) Permanente Medical Group v. Workers' Compensation Appeals Board (Lisa Montgomery) 8 WCAB Rptr. 10,180 [Writ Denied]

WCAB PROCEDURE- Petition for reconsideration–Once a petition for reconsideration is filed, the petitioner is statutorily barred from responding to new arguments based on additional reasons raised by the WCJ in his Report and Recommendation. (See California Code of Regulations, Title 8 §10848.) Dina Yates v. Workers' Compensation Appeals Board, Paut Cottrell Enterprises 8 WCAB Rptr. 10,103 [Writ Denied

WCAB PROCEDURE- Proceedings for contribution–Labor Code §5500.5(e)–At any time within one year after the Appeals Board has made an award for compensation benefits in connection with an occupational disease or cumulative injury, any employer or carrier held liable under the award may institute proceedings for the purpose of determining apportionment of liability or right of contribution. (See Rex Club v. Workers' Comp. Appeals Bd. (1997) 53 Cal.App.4th 1465.) (In this case, the award did not refer to a period of exposure implicating a carrier's coverage, but the Appeals Board concluded that implicit in Labor Code §5500.5(e) an employer or carrier has the obligation to timely investigate coverage and join potential contributors.) Sierra Optical v. Workers' Compensation Appeals Board (Eldaih Pimienta) 8 WCAB Rptr. 10,039 [Writ Denied]

WCAB PROCEDURE- Petition for reconsideration–Labor Code 5900—Reconsideration is available to challenge any final order, decision or award. To be considered "final," the order must determine a substantive right or liability of those involved in the case. (See Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App. 3d 528.) Reconsideration is not available to challenge interim orders that do not decide a threshold issue, such as intermediate procedural or evidentiary decisions. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4t5h 1068, 2 WCAB Rptr. 10,251.) An order compelling attendance at a medical examination is an intermediate decision. Aria Herrera v. Workers' Compensation Appeals Board, Mercado Latino Inc. 8 WCAB Rptr. 10,022 [Writ Denied]

PETITION FOR RECONSIDERATION– Grounds for petition based on newly discovered evidence– Title 8, Cal.Code of Regs. §10856– When reconsideration is sought on the grounds of newly discovered evidence that could not with reasonable diligence have been produced before the submission of the case, or on the ground that the decision had been procured by fraud, the petition must contain an offer of proof that is specific and detailed, providing: (1) the names of witnesses to be produced; (2) a summary of the testimony to be elicited from the witnesses; (3) the description of any documentary evidence to be offered; (4) the effect that the evidence will have on the record and on the prior decision; and (5) as to the newly discovered evidence, 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. The petition for reconsideration sought on these grounds may be denied if fails to meet these requirements. Brenda Brakhage v. Workers' Compensation Appeals Board, Corporate Express 7 WCAB Rptr. 10,365 [Writ Denied]

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– Any aggrieved party must file a petition for reconsideration from a final order, decision or award within 20 days, plus five days for mailing, otherwise the decision is final. Abu Selim v. Workers' Compensation Appeals Board, Austats, Inc. 7 WCAB Rptr. 10,348 [Writ Denied]

WCAB PROCEDURE– Petition for Reconsideration– 8 Cal.Code Regs/ §10860– When a petition for reconsideration is filed, the WCJ from whose decision relief is sought submits a report and recommendation to the Appeals Board, which states the contentions raised by the petition include a discussion of support in the record for the findings of fact and conclusions of law that serve as a basis for the decision or order as to each contention raised by the petition, and the action recommended by the WCJ. An order denying reconsideration may adopt and incorporate the WCJ's report and recommendation. (See Uriwin v. Workers' Comp. Appeals Bd. (1981) 126 Cal.App.3d 466.) Jesse Vasquez v. Workers' Compensation Appeals Board, Bon Appetit Danish, Inc. 7 WCAB Rptr. 10,347 [Writ Denied]

WCAB PROCEDURE– Petition for Reconsideration– 8 Cal.Code Regs. §10860–When a petition for reconsideration is filed, the WCJ from whose decision relief is sought submits a report and recommendation to the Appeals Board, which states the contentions raised by the petition, includes a discussion of support in the record for the findings of fact and conclusions of law that serve as a basis for the decision or order as to each contention raised by the petition, and the action recommended by the WCJ. An order denying reconsideration may adopt and incorporate the WCJ's report and recommendation. (See Uriwin v. Workers' Comp. Appeals Bd. (1981) 126 Cal.App.3d 466.) Jesse Vasquez v. Workers' Compensation Appeals Board, Bon Appetit Danish, Inc. 7 WCAB Rptr. 10,334 [Writ Denied]

WCAB PROCEDURE– Petition for Reconsideration–Labor Code §5900–Reconsideration may be had only from a final order, decision or award. An order that does not dispose of any substantive rights and liabilities of those involved in the case is not a final order. A final order is defined as one that determines any substantive right or liability. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) Fidelity and Guarantee Insurance Company v. Workers' Compensation Appeals Board (Paul Bianchini) 7 WCAB Rptr. 10,304 [Writ Denied]

WCAB PROCEDURE– Venue for filing petition for reconsideration– Title 8, Cal.Code Regs §10840– Petitions for reconsideration from final orders, decisions or awards must be filed in the district office of the Workers' Compensation Appeals Board from which the order, decision or award was issued. Petitions for reconsideration received in any other district office shall neither be accepted for filing nor deemed filed for any purpose. Los Angeles Unified School District v. Workers' Compensation Appeals Board (Jen-Al Solomon) 7 WCAB Rptr. 10,269 [Writ Denied]

WCAB PROCEDURE– Petition to reopen for good cause– The principle of reopening for "good cause" does not permit an attempt to simply relitigate the original award. A petition to reopen may not be used to litigate issues that should have been raised by a timely petition for reconsideration. (See Royster v. Workmen's Comp. Appeals Bd. (1974) 30 Cal.App.3d 412.) Lisa Ybarra v. Workers' Compensation Appeals Board, Delta Airlines 7 WCAB Rptr. 10,271 [Writ Denied]

WCAB PROCEDURE– Petition to reopen for good cause– "Good cause" to reopen does not consist of medical evidence obtained subsequent to the original decision, which merely disagrees with the medical opinion relied on by the Appeals Board at the time of the original decision. (See Consolidated Western Steel Div. v. Industrial Acc. Com. (1962) 205 Cal.App. 2d 225.) Lisa Ybarra v. Workers' Compensation Appeals Board, Delta Airlines 7 WCAB Rptr. 10,271 [Writ Denied]

WCAB PROCEDURE– Petition for Reconsideration– WCAB Rule 10842–Every petition for reconsideration shall fairly state all of the material evidence relative to the point or points at issue. A failure to state all of the material evidence, including that not favorable to the petitioner, is grounds for denying the petition. (See Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918.) Addecco Employment Services and Constitution State Services Company v. Workers' Compensation Appeals Board (Paul Rios) 7 WCAB Rptr. 10,270 [Writ Denied]

WCAB PROCEDURE– Filing of Petition for Reconsideration– Cal.Code of Regs., Title 8 §10391– Any document that has been sent to the WCAB directly by facsimile (fax) will not be accepted for filing. Kenneth Beffa v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 7 WCAB Rptr. 10,265 [Writ Denied]

WCAB PROCEDURE– Filing of Petition for Reconsideration– A petition for reconsideration is deemed filed on the day it was received at the appropriate WCAB district office and not on the date it was served by deposit in the mail. (See County of Lake v. Workers' Comp. Appeals Bd. Helbush) (1984) 49 Cal.Comp.Cases 627 [writ denied].) Kenneth Beffa v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 7 WCAB Rptr. 10,265 [Writ Denied]

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– Any person aggrieved directly or indirectly by any final order, decision, or award made or filed by the Appeals Board may petition the Appeals Board for reconsideration in respect to any matters determined or covered by the final order. In this case, the Appeals Board amended the Findings and Award to defer the issue of self-procured medical treatment and the deferral of the issue is not a final order. Fairchild Fasteners v. Workers' Compensation Appeals Board (Maria Lopez) 7 WCAB Rptr. 10,269 [Writ Denied]

WCAB PROCEDURE– Reconsideration of an en banc decision– May an en banc decision be challenged by a petition for reconsideration? Brice Sandhagen v. Workers' Compensation Appeals Board, Cox & Cox Construction, Inc. 7 WCAB Rptr. 10,237 [Writ Granted]

WCAB PROCEDURE– Petition for reconsideration– Labor Code §5900– Reconsideration may be had only of a final order, decision, or award. A WCJ's pretrial order about which law applies does not determine the substantive rights and liabilities but merely what procedure will be followed, and, therefore, is an interlocutory order from which reconsideration may not be sought. (See California Casualty Indemnity Exchange v. Workers' Compensation Appeals Board (Siegwart) (1979) 44 Cal.Comp.Cases 1112 (writ denied).) Kenneth Vlach v. Workers' Compensation Appeals Board, Alliance Finishing and Manufacturing, CAN Insurance 7 WCAB Rptr. 10,207 [Writ Denied]

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5903 – Failure to file the petition for reconsideration within 20 days of personal service of an order, decision or award by which the party was aggrieved (or 20 days plus 5 days for service by mail) justifies dismissal of the petition for reconsideration. (See 8 Cal.Code of Regs. §10520.) James A. Walmsley v. Workers' Compensation Appeals Board, Pacific Gas & Electric Company 7 WCAB Rptr. 10,174

PETITION TO REOPEN– Labor Code §5804–The only finding not subject to reopening for good cause is the finding of employment. The Appeals Board has continuing jurisdiction to amend and increase an award pursuant to Labor Code §5803 for new and further disability. (See City of Anaheim v. Workers' Comp. Appeals Bd. (Davis) (1982) 128 Cal.App.3d 200.) Glendale Adventist Medical Center v. Workers' Compensation Appeals Board (Theresa O'Brien Plunkett) 7 WCAB Rptr. 10,157

WCAB PROCEDURE– Petition for Reconsideration–Failure to verify a petition for reconsideration as required by Labor Code §5902 is ground for dismissal of the petition. (See Lucena v. Workers' Comp. Appeals Bd. (2001) 3 WCAB Rptr. 10,048 [Significant Panel Decision] Roy Dixon v. Workers' Compensation Appeals Board, Busco Contractors 7 WCAB Rptr. 10,156

WCAB PROCEDURE– Dismissal of petition for reconsideration–A petition for reconsideration is properly dismissed when the petition is not filed in the district office from which the decision was issued (WCAB Rule 10840) within 25 days of the decision (20 days per Labor Code §5903 plus 5 days for mailing per Code of Civil Procedure §1013). Patricio's Market-Savemart v. Workers' Compensation Appeals Board (Pauline McCammond) 7 WCAB Rptr. 10,142

WCAB PROCEDURE– Dismissal of petition for reconsideration–The petition for reconsideration is also properly dismissed as being unverified despite having been advised by the WCJ in his Report of the missing verification. (See Lucena v. Diablo Auto Body (2000) 3 WCAB 10,048 [en banc]. Patricio's Market-Savemart v. Workers' Compensation Appeals Board (Pauline McCammond) 7 WCAB Rptr. 10,142

WCAB PROCEDURE– Decision of Reconsideration–Labor Code §5908.5–A WCAB panel decision on reconsideration must state the evidence relied on and specify in detail the reasons for the decision. The panel fulfills its duty when it incorporates and adopts the WCJ's report on reconsideration, provided the WCJ's report itself satisfies the requirement of substantial evidence. (See Vela v. Workmen's Comp. Appeals Bd. (1971) 22 Cal.App.3d 513.) Laurie D. Thompson v. Workers' Compensation Appeals Board, Pacific Groservice 6 WCAB Rptr. 10,336

WCAB PROCEDURE– Petition for Reconsideration–Labor Code §5900–A party cannot cure the untimeliness of its petition for reconsideration by purporting to seek reconsideration of an order enforcing a previously issued Findings and Award. [In this case, the order enforcing the provisions of the Findings and Award did not change the provisions of the Findings and Award and did not establish a new 20-day time limit in which to seek reconsideration.] JPS/Earthlink, Inc. v. Workers' Compensation Appeals Board (Satwinder Gill) 6 WCAB Rptr. 10,315

WCAB PROCEDURE– Petition for Reconsideration–Labor Code 5900–A petition for reconsideration is deemed filed on the day it was actually received at the appropriate WCAB office and not on the date it was deposited in the mail. The time limit for filing a petition for reconsideration is jurisdictional so that the Board lacks the power to grant an untimely petition. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.3d 1068.) Bobbie Sanders v. Workers' Compensation Appeals Board, Employment Development Department 6 WCAB Rptr. 10,318

WCAB PROCEDURE– Petitions for reconsideration of Appeals Board panel decisions–California Code of Regulations, Title 8, §10840–Petitions for reconsideration from final orders, decisions or awards by the Appeals Board in San Francisco must be filed at the office of the Appeals Board in San Francisco. Petitions for reconsideration received in any district office shall neither be accepted for filing nor deemed filed for any purpose. (See City of Novato v. Workers' Comp. Appeals Board (Manning) (2003) 5 WCAB Rptr. 10,099 [writ denied].) Pep Boys v. Workers' Compensation Appeals Board (Jose Lemus) 6 WCAB Rptr. 10,287

WCAB PROCEDURE– Petition for reconsideration–When the Appeals Board has denied or dismissed a petition for reconsideration on a record containing no new evidence, or a party is not newly aggrieved, the petitioning party cannot attack the Appeals Board's action by another petition for reconsideration but must petition the Court of Appeal for a writ of review or be bound by the final decision. (See Crowe Glass Co. v. Industrial Acc. Com. (Graham) (1927) 84 Cal.App. 287.) Vincent Ruiz v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 6 WCAB Rptr. 10,287

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5903– The petition for reconsideration shall set forth specifically and in full detail the grounds upon which the petitioner considers the final order, decision, or award made and filed by the WCJ to be unjust or unlawful. The petition shall contain a general statement of any evidence or other matters upon which the applicant relies in support of the petition. Lewis Williamson v. Workers' Compensation Appeals Board, McCallson Van & Storage. 6 WCAB Rptr. 10,205

WCAB PROCEDURE– Petition to Reopen– Labor Code §5804– When the Labor Code requires a petition to reopen be filed within five years of the date of injury to extend the jurisdiction of the Workers' Compensation Appeals Board and a represented claimant fails to file a petition to reopen within five years, does the Workers' Compensation Appeals Board lack jurisdiction to reopen a case and award additional disability? [In this case, the WCJ construed the filing of a Declaration of Readiness indicating permanent disability was an issue together with a medical report showing increased permanent disability was the functional equivalent of filing a petition to reopen for new and further disability.] County of San Diego v. Workers' Compensation Appeals Board (Mary Rojas-Melzer) 6 WCAB Rptr. 10,201

WCAB PROCEDURE– Failure to Verify a Petition for Reconsideration– When a party does not offer any reason for lack of verification of a petition for reconsideration after specific notice of the absence of the verification, the petition for reconsideration may be dismissed. (See Lucena v. Diablo Auto Body (2001) 6 WCAB Rptr. 10,048 [significant panel decision].) American Home Assurance v. Workers' Compensation Appeals Board (Sue Atkinson) 6 WCAB Rptr. 10,190

WCAB PROCEDURE– Appellate Procedure for Denial of Reconsideration– Once a party has filed a petition for reconsideration, a new petition for reconsideration will be denied as a consecutive or successive petition. A party cannot challenge the denial of reconsideration by successive petitions for reconsideration. The appropriate remedy is a writ of review. (See Crowe Glass Co. v. Industrial Acc. Com. (Graham) (1927) 84 Cal.App. 287.) Judith Swayne v. Workers' Compensation Appeals Board, Los Angeles County Treasurer. 6 WCAB Rptr. 10,190

WCAB PROCEDURE– Petition for Reconsideration Denial by Operation of Law– Labor Code §5909– A petition for reconsideration is deemed to have been denied by the Appeals Board unless it is acted upon within 60 days from the date of filing. When the evidence establishes that a petition for reconsideration was timely filed and was somehow misplaced, the Appeals Board's dismissal was premature and the Appeals Board should address the petition for reconsideration on its merits. J.C. Penney Co. v. Workers' Compensation Appeals Board (Leonard Lewandowski) 6 WCAB Rptr. 10,190

WCAB PROCEDURE– Decisions on Petitions for Reconsideration– Labor Code §5908.5 mandates that any decision of the appeals board granting or denying a petition for reconsideration or affirming, rescinding, altering or amending the original findings, order, decision or award following reconsideration shall state the evidence relied upon and specify in detail the reasons for the decision. (See generally Patterson v. Workers' Comp. Appeals Bd. (1975) 53 Cal.App.3d 916.) Crestwood Hospitals, Inc. v. Workers' Compensation Appeals Board (Rosalina Ochoa) 6 WCAB Rptr. 10,166

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5903 allows 20 days to file a petition for reconsideration, and the time for filing may be extended five days for mailing. A petition for reconsideration is deemed filed on the day it is actually received at the appropriate WCAB office and not on the date it was deposited in the mail. The time limit for filing a petition for reconsideration is jurisdictional so that the Appeals Board lacks the power to grant an untimely petition. (See Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 979.) Carl H. Smith v. Workers' Compensation Appeals Board, Westside Machinery Company. 6 WCAB Rptr. 10,159

PETITION FOR RECONSIDERATION– Labor Code §5900– Finding of fact may constitute a "final order" within the meaning of Labor Code §§5900 and 5902. (See Maranian v. Workers Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) [In this case, the decision determined pivotal threshold issues substantially affecting the outcome of applicant's claims, considerably curtailing the breadth of the claims, the discovery permitted, and the amount of trial time resolution of those claims would require.] Kofi Opong-Mensah v. Workers' Compensation Appeals Board, California Department of Food and Agriculture. 6 WCAB Rptr. 10,094

WCAB PROCEDURE– Reopening for new and further disability– Labor Code §5410– The Appeals Board has jurisdiction to award temporary disability indemnity benefits that commence more than five years after the date of injury when a petition for new and further disability is timely filed. (See Beck v. Workers' Comp. Appeals Bd. (2000) 2 WCAB Rptr. 261 [writ denied].) [In this case, the medical evidence clearly supported a determination that the applicant had increasing symptoms during the five-year period within which to file a petition to reopen, resulting in the need for surgery beyond the five-year period.] Franchise Tax Board v. Workers' Compensation Appeals Board (Kerry Schultz) 6 WCAB Rptr. 10,077

WCAB PROCEDURE– Successive Petitions for Reconsideration– A petitioning party cannot attack an Appeals Board order through another petition for reconsideration. Successive petitions for reconsideration are not allowed. (See Crowe Glass Company v. Industrial Acc. Com. (Graham)(1927) 84 Cal.App. 287; Navarro v. A&A Farming (2002), 4 WCAB Rptr. 10,164.) Marissa Batt v. Workers' Compensation Appeals Board, County of Los Angeles. 6 WCAB Rptr. 10,058

WCAB PROCEDURE– Petition for Reconsideration of a WCAB Panel Decision– Cal. Code of Regs. Title 8, §10840– Petitions for reconsideration from final orders, decisions or awards, issued by the Appeals Board in San Francisco must be filed at the office of the Appeals Board in San Francisco. Petitions for reconsideration received in any district office shall neither be accepted for filing nor deemed filed for any purpose. Union Auto Body v. Workers' Compensation Appeals Board (Raymundo Chavira) 6 WCAB Rptr. 10,058

WCAB PROCEDURE– Time Limit for Filing Petition for Reconsideration– Labor Code §5903– The time limit for filing a petition for reconsideration is jurisdictional so that the Board lacks the power to grant an untimely petition. (See Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 979.) Union Auto Body v. Workers' Compensation Appeals Board (Raymundo Chavira) 6 WCAB Rptr. 10,058

WCAB PROCEDURE– Petition to reopen for newly discovered evidence– Due diligence during discovery means reasonable diligence, and a showing all possible discovery was exhausted is not required. [In this case, the applicant was timely deposed and obtained medical evidence pursuant to the existing record. Hospital records obtained after trial should be admitted as newly discovered evidence.] Gelson's/Arden Group, Zurich Insurance Company v. Workers' Compensation Appeals Board (Maria Baez) 6 WCAB Rptr. 10,003

PETITION TO REOPEN– Labor Code §5410– To invoke the jurisdiction for a new and further disability, the injured worker, within five years of the date of injury, must specifically state a request to reopen to claim a new and further disability. Granite Construction Company v. Workers' Compensation Appeal Board (Carl McReynolds) 5 WCAB Rptr. 10,317

WCAB PROCEDURE– Petition to reopen for newly discovered evidence– Must newly discovered evidence of fraud be considered on a Petition to Reopen, whether or not the evidence of fraud could have been discovered with reasonable diligence prior to the submission of the case for decision? Gelson's/Arden Group, Zurich Insurance Company v. Workers' Compensation Appeals Board (Maria Baez) 5 WCAB Rptr. 10,300

WCAB PROCEDURE–Petition for Reconsideration–Labor Code §5903–When an order, decision or award is personally served, the aggrieved party has 20 days after personal service to file a petition for reconsideration. Miguel A. Mazariego, Jr. v. Workers' Compensation Appeals Board, Thu T. Nguyen. 5 WCAB Rptr. 10,278

WCAB PROCEDURE–Petition for Reconsideration–California Code of Regulations, Title 8, §10846–A petition for reconsideration will be considered a skeletal one when it contains no more than allegations of the statutory grounds for reconsideration, unsupported by specific references to the record or principles of law. Pursuant to Title 8 California Code of Regulations, Section 10845, the petition for reconsideration may be denied on that ground. Saeed Khan v. Workers' Compensation Appeals Board, Excel Logistics, Packard Bell. 5 WCAB Rptr. 10,277

WCAB PROCEDURE– Petition to reopen– Labor Code §5804– An order approving a stipulated award, like other WCAB awards, constitutes a final judgment entitled to full res judicata effect unless an interested party petitions to reopen the matter within five years from the date of injury. (See Smith v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 1160.) [In this case, more than 18 years after the injury, applicant sought to set aside and recalculate a 100% disability award, claiming the stipulated award was obtained by fraud in that the employer did not correctly calculate the injured worker's earnings.] Curtis Burnett v. Workers' Compensation Appeals Board, Madera Roofing, Inc. 5 WCAB Rptr. 10,267

WCAB PROCEDURE– Petition for Reconsideration– Lien claimant's failure to verify its Petition for Reconsideration following WCJ's report pointing out the lack of verification is contrary to Labor Code §5902. Lien claimant also failed to provide a compelling reason why it had failed to verify the Petition for Reconsideration. (See Lucena v. Diablo Auto Body (2000) 3 WCAB Rptr. 10,048.) William B. Burns v. Workers' Compensation Appeals Board, County of Napa. 5 WCAB Rptr. 10,260

WCAB PROCEDURE– Petition for Reconsideration– Failure to file proof of service of copies of a Petition for Reconsideration on all parties constitutes a valid ground for dismissing the Petition for Reconsideration. (California Code of Regulations, Title 8, section 10850.) William B. Burns v. Workers' Compensation Appeals Board, County of Napa. 5 WCAB Rptr. 10,260

WCAB PROCEDURE– Petition to Reopen– The principle of reopening for "good cause" does not permit an attempt to simply relitigate the original award. A petition to reopen may not be used to litigate issues that should have been raised by a timely petition for reconsideration. "Good cause" to reopen does not consist of medical evidence obtained subsequent to the original decision, which merely disagrees with the medical relied upon by the WCJ at the time of the original decision. (See Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (Macias) (1980) 109 Cal.App.3d 941.) Theresa Martinez v. Workers' Compensation Appeals Board, West Coast Dental. 5 WCAB Rptr. 10,246

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– Reconsideration may be had only from a final order, decision or award. [In this case, the challenged order involved the joinder of a defendant previously dismissed with prejudice earlier in the case. The order was procedural rather than substantive in nature so it was not a final order for purposes of reconsideration. Due to confusion in the record as to appropriate employers and carriers, the WCAB panel treated the petition for reconsideration as a petition for removal and granted removal to return the matter to the WCJ to resolve these issues.] US Filter/Kinetics v. Workers' Compensation Appeals Board (Ralph Paul Craig) 5 WCAB Rptr 10,231

WCAB PROCEDURE– Petition for Reconsideration–Labor Code §5900–Pretrial orders regarding evidence, discovery, trial setting and/or venue are interlocutory orders that do not determine the substantive rights of the parties and therefore are not final orders subject to reconsideration. Castino Restaurant Supplies v. Workers' Compensation Appeals Board (Donald Campbell) 5 WCAB Rptr. 10,214

WCAB PROCEDURE– Petition for Reconsideration–Labor Code §5900–When the Appeals Board fails to serve a decision on a party, the time to petition for reconsideration does not be begin to run until the date the decision is actually received by that party. (See Hartford Accident and Indemnity Co. v. Workers' Comp. Appeals Bd. (Phillips) (1978) 86 Cal. App.3d 1.) Aerotest Inc. v. Workers' Compensation Appeals Board (Jean Lebleu) 5 WCAB Rptr. 10,213

WCAB PROCEDURE– Successive Petitions for Reconsideration–Successive petitions for reconsideration are not allowed. (See Crowe Glass Company v. Industrial Acc. Com. (Graham) (1927) 84 Cal.App. 287) A party aggrieved by a final Appeals Board decision must petition for a writ of review to the Court of Appeal. Carlos D. Vinoly v. Workers' Compensation Appeals Board (Maria Valdovinos) 5 WCAB Rptr. 10,213

WCAB PROCEDURE– Petition for Reconsideration– In this case, the petitioner did not file in the office from which the decision issued (WCAB Rule 10840) within 25 days of the decision (20 days per Labor Code §5903 plus 5 days for mailing per Code of Civil Procedure §1013. TTN Thousand Trails, Inc. v. Workers' Compensation Appeals Board (Elvis Walker) 5 WCAB Rptr. 10,180

WCAB PROCEDURE– Verification of Petition for Reconsideration– Labor Code §5902– A petition for reconsideration must be dismissed for not being verified under Labor Code §5902 after being advised of the missing verification by the WCJ in his report. (See Lucena v. Diablo Auto Body (2001) 3 WCAB Rptr. 10,048.) TTN Thousand Trails, Inc. v. Workers' Compensation Appeals Board (Elvis Walker) 5 WCAB Rptr. 10,180

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– A petition for reconsideration may be had only from a final order that resolves rights or liabilities of the parties. Stanley Wilson v. Workers' Compensation Appeals Board, Chrysler Motor Co. 5 WCAB Rptr. 10,164

PETITION TO REOPEN– Labor Code §5410– Should an applicant's broadly worded letter requesting additional workers' compensation benefits within five years of the date of injury be considered a timely filed but technically deficient petition to reopen sufficient to preserve the Board's jurisdiction to considered additional benefits beyond the five-year period? Granite Construction Company v. Workers' Compensation Appeal Board (Carl McReynolds) 5 WCAB Rptr. 10,163

WCAB PROCEDURE– Petition to Reopen– A technically deficient Petition to Reopen filed within five years from the date of injury preserves the jurisdiction of the Appeals Board to receive evidence in support of the deficient petition and to reopen the case after the five-year period has elapsed. (See Blanchard v. Workers' Comp. Appeals Bd. (1975) 52 Cal.App.3d 590.) Sohnen Enterprises,Inc., v. Workers' Compensation Appeals Board (Gregorio Lopez) 5 WCAB Rptr. 10,152

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– Only a person aggrieved, directly or indirectly, by a final order, decision or award may petition for reconsideration. A final order has been defined as one that determines any substantive right or liability of those involved in the case. (See Safeway Stores, Inc., v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528.) [In this case, an order directing applicant to select a replacement QME, who was deemed unavailable, is not a final order as it does not determine any substantive right of the applicant.] Pamela Jean Manton v. Workers' Compensation Appeals Board, City of Santa Cruz. 5 WCAB Rptr. 10,152

WCAB PROCEDURE– Order Denying Reconsideration– A WCAB panel may properly deny reconsideration by adopting and incorporating the WCJ's reasoning set forth in a Report and Recommendation, if the Report states the evidence relied upon and specifies in detail the reasons for the WCJ's decision. James Fenn v. Workers' Compensation Appeals Board, City of Anaheim. 5 WCAB Rptr. 10,139

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– An order granting reconsideration, rescinding a trial-level decision, and returning the matter to the WCJ for further proceedings and new decision is not a final order within the meaning of Labor Code §5900 et.seq. because such an order does not resolve a substantive issue. [In this case, an order treating an untimely petition for reconsideration as a Petition to Set Aside an Order Approving Compromise and Release and returning the set-aside issue to the trial level for further proceedings and decision by the WCJ did not resolve a substantive issue, and was not a final order.] Genaro Vargas v. Workers' Compensation Appeals Board, Dole Fresh Vegetables. 5 WCAB Rptr. 10,133

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– An interlocutory order regarding discovery does not determine any substantive right or the liability of any party and is not a final order subject to reconsideration. (See Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528.) [The order in this case, required the applicant to attend a medical examination with the defendant's QME under Labor Code §4060.] Paul Enright v. Workers' Compensation Appeals Board, Solar Turbines, Inc. 5 WCAB Rptr. 10,101

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– Only a person aggrieved by a final order, decision or award may properly file a petition for reconsideration. Finality is defined as the resolution of a current issue affecting the substantive rights of the parties. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App. 4th 1068, 2 WCAB Rptr. 10,251.) [In this case, the WCJ ruled that the employer could not litigate the issue of whether applicant's job reassignment was a lawful, good faith personnel action. This was not a final order because the order did not determine the compensability of the claimed psychiatric injury.] Center Unified School District v. Workers' Compensation Appeals Board (Joanne Kraenzel) 5 WCAB Rptr. 10,100

WCAB PROCEDURE– Petition for Reconsideration– When the time to file a petition for reconsideration expires, the underlying order or decision becomes final and the Appeals Board lacks jurisdiction to change it. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) [In this case, the defendant's counsel personally served the minutes of hearing on applicant's counsel and the time of file the petition was 20 days from the date of personal service.] Sutter Health Corporation v. Workers' Compensation Appeals Board (Marisa Freitas) 5 WCAB Rptr. 10,091

WCAB PROCEDURE– Petition for Reconsideration of an arbitrator's decision– There is no separate or regulatory procedure for reconsideration of arbitrator's decisions and arbitrator's decisions are not exempted from the existing procedure for reconsideration. Therefore the established procedure for seeking reconsideration of an arbitrator's decision required the petition for reconsideration within 25 days from the decision served by mail upon a party at an address in California and must be filed in the district office in which the matter is pending. California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Mohammed Sadeque) 5 WCAB Rptr. 10,087

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– Reconsideration may be had only of a final order, decision or award. Interlocutory procedural orders are not final orders because such an order does not dispose of the substantial rights and liabilities of those involved in a case. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 84 Cal.App4th 1068, 2 WCAB Rptr. 10,251.) James M. Krzykowski v. Workers' Compensation Appeals Board (Delta Airlines) 5 WCAB Rptr. 10,086

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– When the Appeals Board's decision after reconsideration affirms the previous award of temporary disability, the defendant is not newly aggrieved and any issues not raised in the first petition are deemed waived. Trans World Airlines v. Workers' Compensation Appeals Board (Joseph Haddad) 5 WCAB Rptr. 10,070

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– A petition for reconsideration may be properly made only from a final order, decision or award. A final order is defined as one that determines any substantive right or liability involved in the case. (See Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528.) [In this case, WCJ Casey determined that the medical record was incomplete and that supplementation of the medical record was required. Such an order is an interim, procedural or discovery order and not a final order subject to reconsideration.] Garden Grove Unified School District v. Workers' Compensation Appeals Board (Toniette La Vertu) 5 WCAB Rptr. 10,054

WCAB PROCEDURE– Petition to Reopen– Cal.Code of Regs, Title 8 §110454– Good cause to reopen does not consist of medical evidence obtained subsequent to the original decision, which merely disagrees with the medical opinion relied upon at the time of the original petition. (See Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd.(Macias) (1980).) County of Los Angeles v. Workers' Compensation Appeals Board (Jeffrey Johnson) 5 WCAB Rptr. 10,054

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– A party may seek reconsideration only from a final order, decision or award. An order that does not dispose of the substantive rights and liabilities of those involved in the case is not a final order. (See Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528.) An order disapproving a compromise and release is an interim decision and, therefore, is not a final order for purposes of reconsideration. (See Carter v. County of Los Angeles (1986) 51 Cal.Comp.Cases 255 (en banc).) The Hartford Insurance Company v. Workers' Compensation Appeals Board (Laetitia McGilchrist) 5 WCAB Rptr. 10,053

PETITION FOR RECONSIDERATION– Timely filing of Petition– Labor Code §5903– If there is defective service of a WCJ's decision, the 20 days within which to file a petition for reconsideration begins to run when the aggrieved party is in receipt of the WCJ's final decision. (See Hartford Accident and Indemnity v. Workers' Comp. Appeals Bd. (Phillips) (1978) 86 Cal.App.3d 1.) There is no additional five days for mailing. (See Camper v. Workers' Comp. Appeals Bd. (1992) 3 Cal.4th 679.) William McColl v. Workers' Compensation Appeals Board, City of Santa Cruz. 5 WCAB Rptr. 10,021

PETITION FOR RECONSIDERATION– Labor Code §5903– A petition for reconsideration is deemed filed on the day it was actually received at the appropriate WCAB office and not the day it was deposited in the mail. (See Vally v. Workers' Comp. Appeals Bd. (1973) 38 Cal.Comp.Cases 468 [writ denied].) The time limit for filing a petition for reconsideration is jurisdictional so that the Board lacks the power to grant an untimely petition. (See Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 979.) The Affiliates and Specialty Risk Services, Inc. v. Workers' Compensation Appeals Board (Deborah Campbell) 5 WCAB Rptr. 10,020

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– A petition for reconsideration may be properly made only from a final order, decision or award. A final order is an order that determines any substantive right or liability of those involved in the case. Interim, procedural, or discovery orders are not final orders. (See Safeway Stores, Inc. v. Workers' Compensation Appeals Board (Pointer) (1980) 104 Cal.App. 3d 528.) [In this case the WCJ found the medical reports in the case were not admissible and a permanent and stationary report did not rise to the level of substantial evidence and ordered the appointment of an Independent Medical Examiner.] Garden Grove Unified School District v. Workers' Compensation Appeals Board (Toiette La Vertu) 4 WCAB Rptr. 10,334

WCAB PROCEDURE– Time for filing petition for reconsideration– Labor Code §5903– The time limit set by Labor Code §5903 for filing a petition for reconsideration is jurisdictional and the Board lacks the power to grant an untimely petition. (See Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App. 3d 979.) Likewise, California Code of Regualtions, Title 8, section 10843 requires any Petition for Removal be filed within 25 days of the order, decision or event triggering the Petition for Removal. Garden Grove Unified School District v. Workers' Compensation Appeals Board (Toiette La Vertu) 4 WCAB Rptr. 10,334

PETITION FOR RECONSIDERATION– Labor Code §5900– When a party has filed a petition for reconsideration and does not prevail, the petitioning party cannot attach the Board's action by a second petition for reconsideration, rather, the petitioning party must either be bound by the Board's action or challenge it by filing a timely petition for writ of review. (See Goodrich v. Industrial Acc. Com. (1943) 22 Cal.2d 604.) [In this case although the Board rejected applicant's petition based on a different rationale than the one relied upon by the WCJ, no new evidence was considered on reconsideration and the Board did not decide any new legal theories on reconsideration. The issue of ERISA preemption was raised at every stage of the proceedings in the case.] Alonso Navarro v. Workers' Compensation Appeals Board, A &A Farming. 4 WCAB Rptr. 10,299

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5900– Reconsideration may be had only of a final order, decision or award. A final order is denied as an order that determines any substantive rights of liability of those involved in the case. (See Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 2 WCAB Rptr. 10,251.) (The order in this case was that discovery was to remain open and the case taken off calendar pending completion of applicant's deposition.) Terry Robinson v. Workers' Compensation Appeals Board, Patterson Frozen Foods. 4 WCAB Rptr. 10,253

WCAB PROCEDURE– Petition for Reconsideration– Labor Code §5903– For a petition for reconsideration to be timely, it must be actually been received by the Appeals Board within the 25-day statutory period and not merely mailed within that time.The time limit set by Labor Code §5903 for filing a petition for reconsideration is jurisdictional and the Appeals Board lacks power to grant an untimely petition. (See Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App. 3d 979.) Jesse Esnayra v. Workers' Compensation Appeals Board, Edge Manufacturing, Inc. 4 WCAB Rptr. 10,188

WCAB PROCEDURE– Petition for Reconsideration– Cal. Code of Regs., Title 8, § 10842– Each contention in a petition for reconsideration must be separately stated and clearly set forth and there is no provision in the Rules for incorporation of previous pleadings in a petition for reconsideration. County of Los Angeles v. Workers' Compensation Appeals Board (Maria Mora) 4 WCAB Rptr. 10,186

WCAB PROCEDURE– Petition to Reopen QIW Status– Subsequent to a determination of QIW status by the Rehabilitation Unit, the finding by a WCJ that the worker had no permanent disability constitutes good cause for the Rehabilitation Unit to reopen its determination of QIW status. Michael T. Reitmeier v. Workers' Compensation Appeals Board, California Cabinets & Store Fixtures. 4 WCAB Rptr. 10,153

WCAB PROCEDURE– Petition to Reopen Filed by Defendant– In this case the defendant filed a petition to reopen based on sub rosa films taken after an award was issued finding permanent total disability. Although the films showed the applicant engaged in activities inconsistent with someone who is less than totally permanently disabled, the WCJ properly relied on medical opinions concerning applicant's disability level since after the award there were recurrent staph infections, avascular necrosis in the hips and knees with total hip replacement and a stroke during hip surgery, as well as other medical developments since the original award of increased necrosis in the knee, total knee replacement, bilateral writs tendentious with surgery on one wrist, bilateral cataracts, opiate medication dependence and depression. Tenet Healthcare Corp. v. Workers' Compensation Appeals Board (Susan Milner) 4 WCAB Rptr. 10,092

WCAB PROCEDURE– Petition to Reopen for New and Further Disability– Labor Code §5410– The Appeals Board lacks jurisdiction to award indemnity for new and further temporary disability in response to a petition filed more than five years from the date of injury. (See Nickelsberg v. Workers' Comp. Appeals Bd. (1991) 54 Cal.3d 288.) Similarly, the Appeals Board may not reserve jurisdiction to make such an award. (See Hartsuiker v. Workers' Comp. Appeals Bd. (1993) 12 Cal.App.4th 209.) [In this case the further disability itself did not arise until more than five years after the date of injury.] Yvonne Fekkers v. Workers' Compensation Appeals Board, State Compensation Ins. Fund. 4 WCAB Rptr. 10,028

WCAB PROCEDURE– Petition for Reconsideration only from a final order, decision or award– Labor Code §§5900, 5903– A petition for reconsideration may be made only from a final, order, or award. (In this case the granting of a petition for removal ordering the applicant to attend a medical-legal evaluation sought by defendant pursuant to its timely filed petition to reopen to reduce applicant's award of permanent disability, and ordering defendant to provide applicant with a full accounting of benefits paid to date, was an interim or procedural order and did not decide any substantive right or liability of applicant and was not therefore subject to reconsideration. (See Bay Medical Management v. Workers' Comp. Appeals Bd.(Weir) (2000) 2 WCAB Rptr. 10,294.).] Eileen Dall v. Workers' Compensation Appeals Board, Regency Thermographics. 4 WCAB Rptr. 10,027

WCAB PROCEDURE– Verification of Petition of Reconsideration– Labor Code §5902 – When a petition for reconsideration is not verified as required by Labor Code §5902, and when the petitioner receives notice of the lack of verification and does not correct the defect within a reasonable time, or offer a compelling reason why the petition is not verified and demonstrate he respondents were not prejudiced by the lack of verification, the Appeals Board will generally dismiss the petition. (See Lucena v. Diablo Auto Body (2000) 3 WCAB Rptr. 10,048.) Clifford Thompson v. Workers' Compensation Appeals Board, The Boeing Company. 3 WCAB Rptr. 10,362

WCAB PROCEDURE– Petition to Reopen– In order to grant a Petition to Reopen, there must be a change in applicant's condition subsequent to the Award, which applicant seeks to reopen. (See Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (Macias) (1980) 109 Cal.App.3d 941.) [In this case the medical evidence disagreed with the medical evidence relied on in reaching ht original decision. This does not constitute good cause to reopen since there were no new facts that rendered the original award inequitable.] Roger Eddie Hall v. Workers' Compensation Appeals Board, Fog Horn Freight Lines. 3 WCAB Rptr. 10,311

WCAB PROCEDURE– Petition to Reopen– An award of compensation may be rescinded, altered or amended by a petition filed within five years from the date of injury. The time limit is jurisdictional. (See Selden v. Workers' Comp. Appeals Bd. (1986) 176 Cal.App.3d 877.) [More than five years had passed following the original finding of injury to the psyche was only a psychogenic cough, and therefore the applicant was precluded form reopening the case to pursue a more generalized psychiatric claim.] Beverly Bass v. Workers' Compensation Appeals Board, City of Lynwood. 3 WCAB Rptr. 10,290

WCAB PROCEDURE– Petition to Reopen– Labor Code §5803– A petition to reopen must give the opposing party adequate notice of what they must defend against. [The petition to reopen in this case was deficient in that it failed to specify that an additional body part was involved.] Jerry Davis v. Workers' Compensation Appeals Board, Sam Carrasco Trucking. 3 WCAB Rptr. 10,027