Authorities as the decision cited them, with how this panel applied each one.
Lab. Code § 5909
A petition for reconsideration is deemed denied unless acted upon within 60 days from the date a trial judge transmits a case to the appeals board; service of the accompanying report constitutes notice of transmission.
The Board determined the 60-day period commenced on April 24, 2025, when the Report and Recommendation was served and the case transmitted.
From the decision · page 3Former Labor Code section1 5909 provided that a petition for reconsideration was deemed
denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab.
Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:
Lab. Code § 5803
The Board has continuing jurisdiction to rescind, alter, or amend any order, decision, or award upon notice and opportunity to be heard, good cause appearing therefor.
The Board cited its authority to set aside or amend orders if good cause is shown and due process is provided.
From the decision · page 4"The appeals board has continuing jurisdiction over all its orders, decisions, and awards
made and entered under the provisions of [Division 4]... At any time, upon notice and after the
opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or
amend any order, decision, or award, good cause appearing therefor." (Lab. Code, § 5803.)
Cal. Code Regs., tit. 8, §§ 10875, 10888
All defendants and lien claimants must appear at all lien conferences; dismissal for failure to appear requires notice of the hearing to the lien claimant.
Lien claimant was served with notice and failed to appear; the Board must ensure due process before dismissing the lien.
From the decision · page 6WCAB Rule 10875 requires that all defendants and lien claimants must appear at all lien
conferences. (Cal. Code Regs., tit. 8, § 10875.) When a lien claimant fails to appear, the WCJ may
issue an NIT pursuant to WCAB Rule 10888, or may defer the lien. WCAB Rule 10888(c) states
that "A dismissal for failure to appear at a hearing shall only issue if the lien claimant was provided
with notice of the lien conference or trial." (Cal. Code Regs., tit. 8, § 10888(c).) In Fox, supra, 4
Cal.App.4th at p. 1205, the Court of Appeal held "that lien claimants may seek relief from the
consequences of a failure to appear by utilizing a procedure substantially similar to Code of Civil
Procedure section 473, until such time as the matter is more specifically addressed by statutory
provision or Board rule." The Court explained, further, that, "[i]t is the policy of the law to favor,
whenever possible, a hearing on the merits. Appellate courts are much more disposed to affirm an
order when the result is to compel a trial on the merits than when the default judgment is allowed
to stand. Therefore, when a party in default moves promptly to seek relief, very slight evidence is
required to justify a trial court's order setting aside a default." (Id. at pp. 1205-1206.)
Fox v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th 1196
Lien claimants may seek relief from the consequences of a failure to appear by a procedure similar to Code of Civil Procedure section 473; policy favors hearing on the merits.
The Board applied this standard to allow the lien claimant an opportunity to be heard on setting aside the dismissal order.
From the decision · page 6WCAB Rule 10875 requires that all defendants and lien claimants must appear at all lien
conferences. (Cal. Code Regs., tit. 8, § 10875.) When a lien claimant fails to appear, the WCJ may
issue an NIT pursuant to WCAB Rule 10888, or may defer the lien. WCAB Rule 10888(c) states
that "A dismissal for failure to appear at a hearing shall only issue if the lien claimant was provided
with notice of the lien conference or trial." (Cal. Code Regs., tit. 8, § 10888(c).) In Fox, supra, 4
Cal.App.4th at p. 1205, the Court of Appeal held "that lien claimants may seek relief from the
consequences of a failure to appear by utilizing a procedure substantially similar to Code of Civil
Procedure section 473, until such time as the matter is more specifically addressed by statutory
provision or Board rule." The Court explained, further, that, "[i]t is the policy of the law to favor,
whenever possible, a hearing on the merits. Appellate courts are much more disposed to affirm an
order when the result is to compel a trial on the merits than when the default judgment is allowed
to stand. Therefore, when a party in default moves promptly to seek relief, very slight evidence is
required to justify a trial court's order setting aside a default." (Id. at pp. 1205-1206.)