ISIDORO A. LUCENA, Applicant,
v.
DIABLO AUTO BODY; LIBERTY; MUTUAL INSURANCE; SUN VALLEY FORD; GREAT STATES INSURANCE, Defendant(s).
No. WCK 037874
Workers' Compensation Appeals Board State of California
December 7, 2000
OPINION
AND DECISION AFTER RECONSIDERATION (OPINION AND ORDER
VACATING ORDER GRANTING RECONSIDERATION AND ORDER DISMISSING
PETITION FOR RECONSIDERATION)
Merle
C Rabine
On
August 7, 2000, we granted defendant's petition for
reconsideration of the Order for Payment of Sanctions dated
May 16, 2000, in order to allow sufficient opportunity to
further study the factual and legal issues in this case.
After further review, we hold that where a petition for
reconsideration is not verified as required by Labor Code
section 5902,1 the petition will ordinarily be
dismissed where the petitioner has been given notice of the
defect (either by the Report and Recommendation on Petition
for Reconsideration (Report) of the workers' compensation
administrative law judge (WCJ) or by the respondent's
answer) unless, within a reasonable time, the petitioner
either: (1) cures the defect; or (2) offers a compelling
reason for the lack of verification and respondents are not
prejudiced thereby. Therefore, we will vacate our order
granting reconsideration and will dismiss the unverified
petition for reconsideration.
I.
In the
case before us the WCJ found that counsel for defendant,
Great States Insurance Company, willfully filed a petition
for dismissal unsupported by the medical record known to
defendant, thereby causing applicant's counsel to incur
expense in taking the time to reply to the totally
unsupported petition for dismissal. Great States Insurance
Company was therefore ordered to pay sanctions in the amount
of $100.00 plus reasonable attorney fees to applicant's
attorneys for time and expense in preparing their objection
to the petition to dismiss.
Defendant
filed a timely petition for reconsideration, admitting that
the petition for dismissal was filed in error but contending
that it had relied upon a statement in a medical report. The
defendant also denied that the petition was willfully and...
