What the panel ordered
The Appeals Board rescinded the WCJ's Order dismissing the cases and returned the matter to the trial level for further proceedings.
Applicant sought reconsideration of the Joint Order Dismissing Cases dated October 6, 2022, which dismissed both cases without prejudice. The WCJ had dismissed the cases due to applicant's failure to appear at trial, but applicant contended illness and readiness to proceed. The WCJ recommended denial of reconsideration as untimely. The Appeals Board granted reconsideration on its own motion and reviewed the matter further.
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.
The petition for reconsideration was untimely, but the Appeals Board granted reconsideration on its own motion. The dismissal was found invalid because the applicant's attorney's hearing representative appeared at trial, satisfying appearance requirements, making the Notice of Intention to Dismiss and the dismissal order void.
From the decision · page 1Applicant seeks reconsideration of the Joint Order Dismissing Cases (Order) dated October 6, 2022, wherein the workers' compensation administrative law judge (WCJ), dismissed both of applicant's cases without prejudice.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's attorney's hearing representative appeared at the July 14, 2022 trial, satisfying the appearance requirement under WCAB Rule 10305(c).
Favours Applicant prevailed
This appearance invalidated the basis for the Notice of Intention to Dismiss and the dismissal order, leading to rescission of the dismissal.
From the decision · page 2Eventually, trial was set for July 14, 2022, and the minutes list applicant's attorney, James Harmon's hearing representative, Richard Castro, as appearing for applicant. Applicant is marked as not present. The WCJ ordered that the matter be taken off calendar.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, §§ 5900(a), 5903; Cal. Code Regs., tit. 8, §§ 10600, 10605(a)(1), 10615(b)
A petition for reconsideration must be filed within 25 days of service of a final decision; proof of mailing is insufficient, actual receipt by the WCAB is required.
The petition filed by applicant's attorney was untimely as it was received after the 25-day period.
From the decision · page 3There are 25 days allowed within which to file a petition for reconsideration from a "final" decision that has been served by mail upon an address in California. (Lab. Code4, § 5900(a), 5903; Cal. Code Regs., tit. 8, § 10605(a)(1).) This time limit is extended to the next business day if the last day for filing falls on a weekend or holiday. (Cal. Code Regs., tit. 8, § 10600.) To be timely, however, a petition for reconsideration must be filed with (i.e., received by) the WCAB within the time allowed; proof that the petition was mailed (posted) within that period is insufficient. (Cal. Code Regs., tit. 8, § 10940(a), 10615(b).)
Cal. Code Regs., tit. 8, §§ 10752(a), 10756, 10832
The WCJ may issue a Notice of Intention to Dismiss for failure to appear, but if a party's representative appears, the basis for dismissal is invalid.
Applicant's attorney's hearing representative appeared at trial, satisfying appearance requirements, making the NIT and dismissal order void.
From the decision · page 4Where a required party, after notice, fails to appear at a trial in the case in chief: (a) If good cause is shown for failure to appear, the workers' compensation judge may take the case off calendar or may continue the case to a date certain. (b) If no good cause is shown for failure to appear, the workers' compensation judge may issue a notice of intention pursuant to rule 10832, take the case off calendar or continue the case to a date certain. (Cal. Code Regs., tit. 8 § 10756.)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's attorney's hearing representative appeared at trial, satisfying appearance requirements and invalidating the basis for dismissal.
From the decision · page 2Eventually, trial was set for July 14, 2022, and the minutes list applicant's attorney, James Harmon's hearing representative, Richard Castro, as appearing for applicant. Applicant is marked as not present. The WCJ ordered that the matter be taken off calendar.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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