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Time Extensions for Petitions for Reconsideration

Posted by Sure S. Log on Jul 19, 2022 8:30:00 AM
Sure S. Log

Per Labor Code § 5903, a petition for reconsideration may be filed "[a]t any time within 20 days after the service of any final order, decision, or award made and filed by the appeals board or a workers' compensation judge." Althoug LC 5903 establishes a basic 20-day time period for filing a petition for reconsideration, most parties are given longer.

That's because the California Code of Regulations § 10605 extends the time to act following service of a document. It explains that if a document is served by mail, fax, email or any method other than personal service, the period of time for exercising any right or duty to act or respond will be extended:

  1. five calendar days from the date of service if the place of address and the place of mailing of the party, attorney or other agent of record being served is within California;
  2. 10 calendar days from the date of service if the place of address and the place of mailing of the party, attorney or other agent of record being served is outside of California but within the U.S.;
  3. 20 calendar days from the date of service, if the place of address and the place of mailing of the party, attorney or other agent of record being served is outside the U.S.

CCR 10605 describes what is commonly called the "mailbox rule." Unless an order was served personally, most parties have 25 calendar days to file a petition for reconsideration, because injured workers and attorneys commonly are served by mail at an address within California.

Recently, however, the WCAB held that parties may have even more time to file a petition for reconsideration. In Thomas v. Volt Information Sciences, Inc., 2022 Cal. Wrk. Comp. P.D. LEXIS 104, the WCAB held that an applicant's petition for reconsideration was timely even though it was filed 26 days after service of an award. The appeals board noted that the applicant and her attorney received service of the decision within California, but the defendant was served at an address outside of California. The WCAB interpreted CCR 10605 as extending the time to file for all parties being served.



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Similarly, in Mayfield v. Walmart, Inc., 2022 Cal. Wrk. Comp. P.D. LEXIS 120, the WCAB held that an applicant's petition for reconsideration was timely even though it was filed 27 days after an award was served. Again, the applicant and her attorney received service of the decision within California, but because the defendant was served at an address outside of California, the WCAB concluded that CCR 10605 extended the time to file for all served parties.

In both cases, the WCAB held that the extensions of time defined in CCR 10605 are not individualized for each party. Instead, it concluded that CCR 10605 creates a single time period to act for all parties, and if even one party is served at an address outside of California but within the United States, all parties have an extra 10 days to file a petition for reconsideration.

It's not uncommon for insurers or third-party administrators to maintain mailing addresses outside of California. If the cases above were followed, parties routinely
could have 30 days following service of an order to file petitions for reconsideration.

But it must be noted that in both cases, the WCAB was protecting an injured applicant from an untimely filing by finding that CCR 10605 extended the time to file for all parties, even though only the defendant was served at an out-of-state address. Although that would also mean that a defendant's time to act would be extended by 10 days, even if it had an attorney who was served within California, that was not expressly decided.

Moreover, CCR 10628(a) requires the WCAB to serve "all parties of record with any final order, decision or award issued by it on a disputed issue after submission." It's not clear if the WCAB would extend the time to act for all parties if a lien claimant was served with a decision at an out-of-state address.

Because the two decisions above are not binding, this writer cannot recommend that parties routinely calendar 30 days to file a petition for reconsideration just because one of many parties of record is served at an address outside of California. Unless and until a binding decision issues, parties should maintain their regular practice of filing petitions for reconsideration within 25 days from service of an award. These panel cases, however, are citable and may assist a party who inadvertently files an untimely petition for reconsideration.

For further discussion of this topic, see Section 16.61 Petition for Reconsideration — Time Limit and Filing.

Topics: Recon, Time, Petition, Reconsideration