Summary of Wayne J. Sand & Gravel – Denial of petition for reconsideration

Employer filed a timely appeal to a violation of a safety order. On June 13, 2003, the ALJ upheld a violation after a hearing. On July 16, 2003, Employer served a petition for reconsideration by Federal Express on the division but did not deliver the petition to the board. On August 5, 2003, the division filed with the board an answer to the petition. Since no petition was filed with the board, board staff contacted employer to inform it of the error. On August 15, 2003, the board received the original signed petition with no sufficient proof that service or delivery was made upon the board within the required 30 day period. board regulation provides that a petition for reconsideration be filed with the Appeals Board at its Sacramento office. A petition is deemed filed on the date it is delivered or mailed to the Appeals Board. Since the timely filing of a petition is jurisdictional and employer did not file its petition within the prescribed time period, the board was without jurisdiction to reconsider the ALJ's now final decision

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October 2, 2003