46 COR 40-8153 [¶22,939R]

Cal. Code Regs, tit. 8, § 6614(a) (2019) – The Appeals Board lacked jurisdiction to grant reconsideration where Employer filed an untimely petition.

Digest of COSHAB’s Denial of Petition for Reconsideration dated May 9, 2019, Inspection No. 1266860.

Ed Lowry, Chair.

Judith S. Freyman, Board Member.

Background. The Division issued four citations to Employer, which timely appealed. After the appeal was filed, the Board notified the parties that they were to appear at a prehearing conference. The Division appeared, but Employer did not. The ALJ then issued an order dismissing appeal for failure to appear.

Employer did not respond to the order, but instead contacted the Appeals Board requesting information on filing a petition for reconsideration. The Board responded by sending Employer information on how to do so. Employer subsequently filed an untimely petition for reconsideration.

Denial of petition for reconsideration. Employer’s petition did not state any of the grounds under Labor Code §6617 for reconsideration, which was grounds to deny it (Herron Construction, Inc., Cal/OSHA App. 1113956, DDAR (Dec. 22, 2016) [Digest ¶ 22,642R]). Additionally, Employer did not verify its petition or provide proof that it had served the petition on the Division. Both verification and proof of service are required by statute, and failure to comply is grounds for denying a petition (Labor Code §§6616, 6619).

The Appeals Board lacked jurisdiction to grant reconsideration because Employer filed its petition after expiration of the time to do so, under Labor Code §6614(a). After Employer failed to appear at the prehearing conference, the order was issued and became final 15 days later. Employer had 30 days from that date to petition for reconsideration, pursuant to Labor Code §6614(a). Code of Civil Procedure §1013(a) provides that where service is made by mail to an address in California, the deadline is extended by five days. Employer filed its petition six days late.

It is well-established that the Board lacks jurisdiction to grant reconsideration if a party files a petition for reconsideration beyond the time allowed in Labor Code §6614(a) (Cecilio Murrieta dba El Toro Bravo Torilleria, Cal/OSHA App. 1232113, DDAR (May 29, 2018) [Digest ¶ 22,826R]). As a result, the Board denied Employer’s petition.