Villa v. Workers' Comp. Appeals Bd.

• Decision Date: 24 May 1984
• Citation: 203 Cal.Rptr. 26,156 Cal.App.3d 1076
• Court: California Court of Appeals Court of Appeals
• Parties: Ernesto VILLA, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD OF the STATE OF CALIFORNIA and Mission Linen Supply, Permissibly Self-Insured, c/o Jemark Administrators, Inc., Respondents. Civ. 69915.

Page 26

203 Cal.Rptr. 26

156 Cal.App.3d 1076

Ernesto VILLA, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD OF the STATE OF CALIFORNIA and Mission Linen Supply, Permissibly Self-Insured, c/o Jemark Administrators, Inc., Respondents.

Civ. 69915.

Court of Appeal, Second District, Division 6, California.

May 24, 1984.

As Modified June 22, 1984.

Hearing Denied July 26, 1984.

Ghitterman, Hourigan, Grossman, Finestone & Schumaker, Ventura, for petitioner.

Zonni, Ginocchio & Taylor, Santa Ana, for Respondent Mission Linen Supply, permissibly self-insured, c/o Jemark Administrators, Inc.

Alvin R. Barrett, for respondent W.C.A.B.

STONE, Presiding Justice.

Petitioner Ernesto Villa seeks review of the July 1, 1983, order of respondent Workers' Compensation Appeals Board denying reconsideration of the Workers' Compensation Judge's finding that applicant sustained no industrial injury to his eyes.

This court originally denied the petition as untimely filed; however, on December 28, 1983, the Supreme Court granted Villa's petition for hearing and retransferred the matter to the court "with directions to issue a writ of review to be heard ... when the proceeding is ordered on calendar. (Shearer v. Superior Court (1977) 70 Cal.App.3d 424 .)"

Villa's petition for writ of review was filed in this court on August 16, 1983, 46 days after the Board's order denying reconsideration.

Labor Code section 5950 ¹ provides that a petition for writ of review "must be made within 45 days after a petition for reconsideration is denied." A petition for writ of review filed one day after expiration of the time prescribed by section 5950 has been held untimely, thus depriving this court of jurisdiction. (Nat. Auto. Ins. Co. v. Ind. Acc. Com. (1943) 58 Cal.App.2d 508, 509, 136 P.2d 815; see Litzmann v. Workmen's Comp. App. Bd. (1968) 266 Cal.App.2d 203, 204, 71 Cal.Rptr. 731.)

Based upon section 5950 and the afore-cited authorities, we ordered the instant petition dismissed as untimely filed. Thereafter, the Supreme Court issued its retransfer order, citing Shearer v. Superior Court, supra, 70 Cal.App.3d 424, 138 Cal.Rptr. 824.

In Shearer, a petition for writ of mandate was filed after expiration of the statutory time therefor, as measured from the date of the trial court's order which petitioner sought to be reviewed. However, the petition was filed within the time extended by 10 days for service by mail outside the state as provided in Code of Civil Procedure section 1013. It was held that Code of Civil Procedure section 1013 operated to extend the time for filing 10 days, and thus the petition was timely. (Shearer v. Superior Court, supra, 70 Cal.App.3d 424, 426, 138 Cal.Rptr. 824.) ²

Title 8, chapter 4.5 of the California Administrative Code prescribes Rules of Practice and Procedure of the Workers' Compensation Appeals Board. Section 10500 thereof provides that the Board "shall serve a copy of the notice of ... all findings, orders, decisions and awards upon the parties and their attorneys ... by mail at their addresses of record or by personal service." Section 10507 thereof provides: "The time requirements of Code of Civil Procedure Section 1013 shall govern all service by mail."

Despite the above cited rules of practice, some earlier cases have held or indicated that the statutorily prescribed period in which a petition for writ of review may be filed starts to run on the date the order or decision is filed, not when it is served. (State Farm Fire & Casualty Co. v. Workers' Comp. Appeals Bd. (1981) 119 Cal.App.3d 193, 196, 173 Cal.Rptr. 778.) Nevertheless, this court has recently held otherwise. (Ibid.)

The undisputed facts in the instant case reveal that the Board, in accordance with customary practice, mailed notice of the July 1, 1983 order denying reconsideration to petitioner at the office of petitioner's counsel in this state, as evidenced by notation to that effect on the Board's order, and was not received by counsel until several days thereafter. Consequently, the instant petition for writ of review was timely filed. (State Farm Fire & Casualty Co. v. Workers' Comp. Appeals Bd. supra; Shearer v. Superior Court, supra, 70 Cal.App.3d 424, 138 Cal.Rptr. 824.)

Petitioner's contention that the evidence does not support the finding that he sustained no industrial injury to his eyes is meritless.

Petitioner claims two separate injuries to his eyes in the course of his employment as a laundry worker, (1) an alleged injury in September 1981 when his foreman purportedly threw a dirty towel in petitioner's face, resulting in irritation to both eyes and swelling of his right eye, and (2) an alleged injury on June 17, 1982, when a sheet which petitioner was loading into a machine purportedly grazed his left eye, resulting in swelling. He claims that his bilateral detached retinas resulted from the trauma in the two incidents.

Quite apart from the direct conflict in the testimony of petitioner and his foreman (Mr. Forthe) as to whether the towel was in fact thrown, petitioner failed to present any medical evidence establishing that the trauma from either or both of the claimed incidents was sufficient to cause bilateral retinal detachment, which apparently resulted from...