ADJ12602375 — California WCAB decision

What the panel ordered

The WCAB granted the petition for reconsideration, rescinded the order denying the petition to set aside the dismissal, and substituted findings that applicant showed good cause to set aside the dismissal order.

Applicant sought reconsideration of the March 2, 2022 Findings of Fact & Orders denying her petition to set aside the March 18, 2021 order dismissing the case for inactivity, which was denied by the PWCJ.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Reconsideration / removalApplicant prevailed

Applicant showed attorney mistake, inadvertence, surprise, or neglect causing dismissal, justifying relief under CCP 473(b).

From the decision · page 11For the foregoing reasons, IT IS ORDERED that applicant's Petition for Reconsideration of the March 2, 2022 Findings of Fact & Orders is GRANTED. IT IS FURTHER ORDERED, as the Decision After Reconsideration of the Workers' Compensation Appeals Board, that the Findings of Fact and Orders are RESCINDED, and the following substituted therefor:

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's counsel admitted failure to object to Notice of Intention to dismiss due to attorney mistake and inadvertence.

From the decision · page 8Here, applicant's counsel filed the petition to set aside the March 18, 2021 order dismissing on May 15, 2021, within six months of case dismissal. The verified pleading states, "Applicant Attorney's failure to serve an objection to the NOI to dismiss the death application was based on mistake and inadvertence. Due to personnel changes within Applicant Attorney's office, the NOI objection was not served despite Applicant Attorney having every intention to continue prosecuting the case." (Petition to Set-aside, dated May 15, 2021, at 3:19.) Thus, applicant's counsel has filed a timely pleading averring attorney mistake and inadvertence, resulting in the case being dismissed for inactivity.

Documentary evidencefavours Applicant prevailed

Defendant was aware of active QME selection process at time of dismissal, indicating applicant's active participation in case.

From the decision · page 10the default.'" (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [211 Cal.Rptr. 416, 695 P.2d 713].) Here, defendant's Petition to Dismiss for Failure to Prosecute was filed one year and four months after the filing of the application, and one year following the most recent discovery order. The parties were actively engaged in the QME selection process set forth under Labor Code section 4062.2 as recently as 10 days before the case was dismissed. (Ex. 10, letter from Zenith, dated March 8, 2021; Ex. F, letter from applicant's counsel, dated March 9, 2021.) Defendant knew of the active and ongoing QME selection process at the time of the dismissal, and was therefore aware of applicant's active participation in the case. However, defendant made no additional representations to the court beyond its original petition for dismissal, which states, "it appears that applicant has failed and refuses to prosecute this matter to a conclusion."2 (Petition to Dismiss for Failure to Prosecute, dated February 23, 2021, at 2:15.) Accordingly, we discern no undue prejudice to defendant in the rescission of the order of dismissal in favor of a determination on the merits.

ADJ12602375 · May 23, 2022

What the panel ordered

What was disputed, and how it came out

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