What the panel ordered
The WCAB granted the petition for reconsideration, rescinded the May 15, 2024 Joint Order Dismissing Lien, and returned the matter to the trial level for further proceedings and decision by the WCJ.
Lien claimant United Certified Interpreting filed a lien and the WCJ dismissed it with prejudice for failure to appear at the lien conference and failure to object to the Notice of Intent to Dismiss Lien. Lien claimant petitioned for reconsideration, which the WCJ recommended denying. The WCAB granted reconsideration, rescinded the dismissal, and returned the matter to the trial level for further proceedings.
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 WCAB found the petition timely due to extended service time, accepted excusable neglect due to illness and clerical error, and granted reconsideration to allow adjudication on the merits.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Lien claimant filed the lien on March 7, 2024, and was served notice of the lien conference on March 8, 2024, one day after filing.
Favours Applicant prevailed
This short interval between filing and hearing limited preparation time, supporting relief for excusable neglect.
From the decision · page 4herein was served one day after the filing of its lien and provided notice of a lien conference scheduled for approximately 33 days later. WCAB Rule 10873(a)(4) (Cal. Code Regs., tit. 8, § 10873(a)(4)) provides that following the filing of a DOR for lien conference, and to the extent feasible, the date of the lien conference "shall be no sooner than 60 days after the date the notice of hearing for it is served." The delay between the filing of a DOR and the lien conference reflects the need for the parties, including lien claimants and defendants, to gather billing, filing information, declarations, invoices and other information necessary to a productive settlement discussion at the lien conference. Here, the timing of the preexisting lien conference allowed only for minimal time for the parties to prepare to resolve the lien filed on March 7, 2024.
Lien claimant's representative was ill on the date of the lien conference, causing failure to appear.
Favours Applicant prevailed
The illness was verified and justified the failure to appear, supporting relief from dismissal.
From the decision · page 2On June 12, 2024, lien claimant filed the instant Petition. Lien claimant avers it failed to attend the April 10, 2024 lien conference due to illness of its lien representative, and that it failed to respond to the Notice of Intent to dismiss its lien through inadvertence and clerical error. (Petition, at p. 2:7.) Lien claimant contends that these errors amount to "excusable neglect" pursuant to Code of Civil Procedure section 473, and that longstanding public policy supports hearing and adjudication on the underlying merits of the lien claim. (Id. at p. 2:16.)
Lien claimant failed to respond to the Notice of Intent to Dismiss Lien due to clerical error and inadvertence.
Favours Applicant prevailed
This excusable neglect justified rescinding the dismissal and allowing adjudication on the merits.
From the decision · page 2On June 12, 2024, lien claimant filed the instant Petition. Lien claimant avers it failed to attend the April 10, 2024 lien conference due to illness of its lien representative, and that it failed to respond to the Notice of Intent to dismiss its lien through inadvertence and clerical error. (Petition, at p. 2:7.) Lien claimant contends that these errors amount to "excusable neglect" pursuant to Code of Civil Procedure section 473, and that longstanding public policy supports hearing and adjudication on the underlying merits of the lien claim. (Id. at p. 2:16.)
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Cited case Fox v. Workers' Comp. Appeals Bd. supports relief under Code of Civil Procedure section 473(b) for excusable neglect in lien dismissal cases.
The decision cites Fox v. Workers' Comp. Appeals Bd. as precedent for granting relief under CCP 473(b) for excusable neglect in lien dismissal cases.
From the decision · page 4The court of appeal has confirmed that Code of Civil Procedure section 473(b) may afford relief in workers' compensation proceedings. In Fox v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th 1196 [6 Cal. Rptr. 2d 252, 57 Cal. Comp. Cases 149] (Fox), J. Dewitt Fox, M.D., a physician and lien claimant, sought relief from an order dismissing his lien claim for failure to appear at a WCAB hearing. (Fox, supra, at p. 1199.) After issuing a notice of intent to dismiss the lien (it is unclear whether Dr. Fox objected to the NIT), the WCJ dismissed the lien. Lien claimant sought reconsideration 43 days later, which the WCAB denied as untimely, noting that even were the petition timely, it would have denied the petition on the merits. (Id. at 1200.) Thereafter, Dr. Fox sought to set aside the dismissal of the lien citing, inter alia, Code of Civ. Proc., section
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
WCAB Rule 10868
WCAB Rule 10868 requires notice of non-attorney representatives for lien claimants.
The lien claimant designated its non-attorney representative as required by this rule.
From the decision · page 3We also observe that the Notice and Request for Allowance of Lien filed by United Certified Interpreting on March 7, 2024 lists Collective Resources Long Beach as its non-attorney representative. Thus, lien claimant designated its representative, and was aware that its representative was not an attorney.
Code of Civil Procedure section 473(b)
Code of Civil Procedure section 473(b) permits relief from judgment or order due to mistake, inadvertence, surprise or excusable neglect.
The WCAB applied this standard to grant relief from dismissal of lien due to excusable neglect and clerical error.
From the decision · page 4In addition, lien claimant's Petition seeks relief under section 473(b), which permits the trial court to relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. A motion seeking relief under section 473 is addressed to the sound discretion of the trial court; its decision will not be overturned on appeal absent a clear showing of abuse of discretion. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 [243 Cal. Rptr. 902, 749 P.2d 339]; Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [211 Cal. Rptr. 416, 695 P.2d 713].) "That discretion, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice." (Rivercourt Co. Ltd. v. Dyna-Tel, Inc. (1996) 41 Cal.App.4th 1477, 1480 [49 Cal. Rptr. 2d 279].)
Labor Code section 5903; WCAB Rule 10605
Labor Code section 5903 and WCAB Rule 10605 govern the timing for filing petitions for reconsideration, including extensions for service outside California.
The WCAB found the petition timely due to extended service time under these rules.
What proof carried it
The evidence the panel weighed, by kind.
Lien claimant's verified averment of illness of its representative on the date of the lien conference and clerical error in failing to respond to the Notice of Intent to Dismiss Lien.
From the decision · page 2On June 12, 2024, lien claimant filed the instant Petition. Lien claimant avers it failed to attend the April 10, 2024 lien conference due to illness of its lien representative, and that it failed to respond to the Notice of Intent to dismiss its lien through inadvertence and clerical error. (Petition, at p. 2:7.) Lien claimant contends that these errors amount to "excusable neglect" pursuant to Code of Civil Procedure section 473, and that longstanding public policy supports hearing and adjudication on the underlying merits of the lien claim. (Id. at p. 2:16.)
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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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