Scott Pontiac GMC v. WCAB (Olsen)
Filed 3/13/07 Scott Pontiac GMC v. WCAB (Olsen) CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SCOTT PONTIAC GMC, Petitioner, v. WORKERS COMPENSATION APPEALS BOARD, Respondent; ROBERT OLSEN, Real Party in Interest. | No. B193817 (W.C.A.B. No. POM 0246294) |
PROCEEDINGS to review a decision of the Workers Compensation Appeals Board. Annulled.
Musick, Peeler & Garrett, Robert J. Bekken and Thomas J. Eastmond for Petitioner.
Neil P. Sullivan and Vincent Bausano for Respondent.
Susan Wulz Silberman for Real Party in Interest.
INTRODUCTION
Following reversal by the Workers Compensation Appeals Board of a favorable decision from the Workers Compensation Administrative Law Judge (WCALJ), petitioner Scott Pontiac GMC filed a petition for reconsideration of that decision via a messenger service on the last possible day for filing.[1]The messenger filed the petition at the correct address but on the wrong floor. The reconsideration unit known as the Workers Compensation Appeals Board (WCAB) is located on the ninth floor. The San Francisco District Office of the Department of Workers Compensation is located on the first floor.[2] The Board did not receive the petition for seven days. The Board dismissed the petition as untimely pursuant to Title 8, California Code of Regulations, section 10840.[3]
Scott Pontiac GMC petitioned this court for a writ of review. (Lab. Code, 5950.) We hold the petition was timely filed pursuant to Labor Code sections 5900 and 5911.[4]
BACKGROUND
Following a petition for reconsideration filed by the injured worker, Robert Olsen, the Board remanded to the WCALJ to determine the merits of Olsens claim of discriminatory termination under Labor Code section 132a. The WCALJ admitted the evidence but again found no discrimination because Scott Pontiac had a legitimate business reason for terminating Olsen. Olsen again petitioned again for reconsideration. The Board reversed the WCALJ and found that Olsens termination was discriminatory.
By messenger service on May 30, 2006, Scott Pontiac filed a petition for reconsideration of the Boards decision at the Department of Workers Compensations field office in San Francisco on the first floor rather than at the Boards office on the ninth floor of the same building. The petition was not received on the ninth floor until seven days later. The Board dismissed the petition as untimely. Scott Pontiac filed a petition for reconsideration of the dismissal order. The Board dismissed that petition as untimely.
DISCUSSION
Scott Pontiac GMC contends the location of the Boards Reconsideration Unit is confusing and the filing should have been considered timely. The Board and Olsen contend that the address of the reconsideration unit is readily accessible and Scott Pontiac GMCs attorney should be held accountable pursuant to Title 8, California Code of Regulations, title 8, section 10840. Scott Pontiac argues that the delayed filing should be considered excusable neglect pursuant to Code of Civil Procedure section 473, subdivision (b).[5] The Board contends section 473 does not apply and relies on principals of statutory interpretation. We need not delve so deep to resolve this problem
We believe the problem is a procedural irregularity readily resolved. We observe that Labor Code sections 5900 and 5903 do not specify the location where the filing of the petition for reconsideration must be and recognize therefore, the necessity for the Boards rule and its authority to make rules to implement the legislative will. Additionally, we note that the Board prefers to decide cases on their merits whenever possible and especially when the error is of its own making. (Shipley v. Workers Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1107[automatic denial of reconsideration petition after 30 days of Board inaction held inapplicable when inaction was due to the petition having been lost by the Board].) In a similar situation, the Board utilized Labor Code section 5911 for dealing with a minor procedural irregularity as here. (See, e.g., Pixpay, Inc. v. Workers Comp. Appeals Bd. (1998) 63 Cal.Comp.Cases 334.) In Pixpay, petitioner allegedly filed prior to 5:00 p.m. while the clerk claimed petitioner filed after 5:00 p.m. Rather than dismissing the petition, the Board granted the petition on its motion pursuant to section 5911. The Board reasoned that since section 5903 did not specify that a petition must be filed by a time certain and noting its preference for considering petitions on their merits, rather than dismissing them based upon procedural irregularities, held that the petition was timely filed. City of San Bernardino and Phelps, supra, are readily distinguishable as clear failures to file at the Board in San Francisco. Here the district office was in Pomona.
We agree with the Boards reasoning in Pixpay. The Board should deem the petition here timely filed on its own motion.[6] Simply because it had to be transferred from one floor to another in order to be in the right department should not result in a dismissal.
DISPOSITION
We annul the Boards orders after consideration.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COOPER, P. J
We concur: BOLAND, J. FLIER, J.
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[1] Labor Code section 5903 states in relevant part: At 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 granting or denying compensation, or arising out of or incidental thereto, any person aggrieved thereby may petition for reconsideration upon one or more of the following grounds and no other: . . . . An additional five days is permitted if the petition is mailed. (Code Civ. Proc., 1013.)
[2] Both departments operate under the auspices of the Department of Industrial Relations. Decisions by the WCALJ at the District Office are reconsidered on appeal by the Board.
[3] California Code of Regulations, title 8, section 10840 provides that petitions for reconsideration of a final order of a WCJ must be filed at the district office of the Board from which the order, decision or award issued and that petitions not so filed shall neither be accepted for filing nor deemed filed for any purpose. (See City of San Bernardino v. Workers Comp. Appeals Bd.(Tull) (1997) 62 Cal.Comp.Cases 798 (writ den.) [petition from decision of the Workers Compensation Appeals Board in San Francisco dismissed per section 10840 because filed in the San Bernardino district office instead of at the Boards San Francisco office]; Phelps v. Workers Comp. Appeals Bd. (1997) 62 Cal.Comp.Cases 377 (writ den.) [dismissed as untimely because filed in Van Nuys, not San Francisco]; cf. Hampton v. Workers Comp. Appeals Bd. (1997) 62 Cal.Comp.Cases 1227 (unpub. DCA opn.) [court remanded on Boards request when petition was delivered by messenger to the 31st floor, Reconsideration Unit of the Department of Workers Compensation, rather than to the Reconsideration Unit of the Workers Compensation Appeals Board on the 4th floor].)
[4] Labor Code section 5900 subdivision (a) provides: Any person aggrieved directly or indirectly by any final order, decision, or award made and filed by the appeals board or a workers compensation judge under any provision contained in this division, may petition the appeals board for reconsideration in respect to any matters determined or covered by the final order, decision, or award, and specified in the petition for reconsideration. The petition shall be made only within the time and in the manner specified in this chapter.
Labor Code section 5911, subdivision (b) provides: Nothing contained in this article shall be construed to prevent the appeals board, on petition of an aggrieved party or on its own motion, from granting reconsideration of an original order, decision, or award made and filed by the appeals board within the same time specified for reconsideration of an original order, decision, or award. (Italics added.)
[5] Code of Civil Procedure section 473, subdivision (b) provides in part: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.
[6] The confusion engendered by the location of the Board and the District Office at the same street address has been longstanding and the Board recognized this in Hampton, supra, byrequesting remand. The Board could readily resolve this problem by allowing its filings to be made on the first floor as well. A petitioners substantive right should not hinge on the capabilities of the delivery person.
