What the panel ordered
Petition for reconsideration dismissed; matter returned to trial level for further proceedings
Petition for reconsideration of Notice of Intention to Dismiss Case filed by applicant after defendant filed petition to dismiss for inactivity; WCJ issued Notice of Intention to Dismiss; petition and dismissal petition found premature by WCAB panel
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 premature because the Notice of Intention to Dismiss was not a final order and the defendant's petition for dismissal was filed prematurely before the expiration of the required notice period.
From the decision · page 1Applicant seeks reconsideration of the January 24, 2025 Notice of Intention to Dismiss Case (NIT) issued by the workers' compensation administrative law judge (WCJ). The NIT indicated that an order of dismissal would issue without prejudice within 20 days of service of the NIT unless good cause was shown in writing by applicant as to why her case should not be dismissed.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant failed to attend three scheduled QME evaluations with Dr. Ryan Culver
Favours Defendant prevailed
This failure supported defendant's petition to dismiss for inactivity and justified the Notice of Intention to Dismiss
From the decision · page 2FACTS Applicant claimed that, while employed by defendant as a delivery associate on October 15, 2022, she sustained an injury arising out of and in the course of employment (AOE/COE) to her right ankle and foot. The parties retained Dr. Ryan Culver as the panel QME. Defendant scheduled an evaluation with Dr. Culver for June 3, 2024. Notice for this evaluation was served on March 2, 2024 to applicant at an address located in San Diego. Applicant did not attend the QME. Defendant rescheduled the evaluation with Dr. Culver for July 29, 2024. Notice for this evaluation was served on June 10, 2024 to applicant at the same address. Applicant was again not in attendance. A petition to compel attendance for a third evaluation scheduled for November 4, 2024 was filed by defendant and served on September 4, 2024. Following the petition, the WCJ issued an order compelling attendance, which was served on September 17, 2024 to applicant at a second San Diego address.
Applicant relocated out-of-state to Arizona and filed a notice of change of address
Favours neutral
This affected service timing and notice periods relevant to the dismissal petition's timeliness
From the decision · page 2Applicant was again not in attendance. On September 27, 2024, applicant filed a notice of change of address informing parties she had moved out-of-state to an address in Arizona. On December 12, 2024, defendant served applicant's counsel and applicant with correspondence advising of their intention to file a petition to dismiss her case due to inactivity under WCAB Rule 10550. The letter was served on December 12, 2024 to applicant's new Arizona address. On January 13, 2025, defendant filed a petition for dismissal of claim which was also served on applicant at her Arizona address. Thereafter, on January 24, 2025, the WCJ issued a NIT indicating that an order of dismissal without prejudice would "issue twenty (20) days from the date of service hereof, unless good cause to the contrary is shown in writing within said time." The NIT was served on applicant at her Arizona address. On January 31, 2025, applicant filed an "Objection to NOI for Dismissal, or in the Alternative [, a] Petition for Reconsideration Regarding Order to Dismiss."
Defendant filed petition for dismissal before expiration of required 30-day notice period extended by 10 days for out-of-state service
Favours Defendant prevailed
This procedural defect rendered both the dismissal petition and reconsideration petition premature
From the decision · page 5(Cal. Code Regs., tit. 8, § 10605(a).) Here, defendant served their notice of intent to dismiss case to applicant at her Arizona address on December 12, 2024. Pursuant to subsection (a)(2) above, given applicant's out-of-state address, the 30-day period under WCAB Rule 10550(b) is to be extended by 10 days. As such, the earliest defendant could have filed their petition for dismissal under WCAB Rule 10550(a) was on January 21, 2025, which is 40 days after December 12, 2024. Unfortunately, defendant's petition for dismissal was filed and served on January 13, 2025. As such, it appears that both applicant's
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.
From the decision · page 2FACTS Applicant claimed that, while employed by defendant as a delivery associate on October 15, 2022, she sustained an injury arising out of and in the course of employment (AOE/COE) to her right ankle and foot. The parties retained Dr. Ryan Culver as the panel QME. Defendant scheduled an evaluation with Dr. Culver for June 3, 2024. Notice for this evaluation was served on March 2, 2024 to applicant at an address located in San Diego. Applicant did not attend the QME. Defendant rescheduled the evaluation with Dr. Culver for July 29, 2024. Notice for this evaluation was served on June 10, 2024 to applicant at the same address. Applicant was again not in attendance. A petition to compel attendance for a third evaluation scheduled for November 4, 2024 was filed by defendant and served on September 4, 2024. Following the petition, the WCJ issued an order compelling attendance, which was served on September 17, 2024 to applicant at a second San Diego address.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
Petition for reconsideration must be acted upon within 60 days of transmission to Appeals Board per Labor Code section 5909
The case was transmitted to the Appeals Board on February 3, 2025, and the decision was issued on April 3, 2025, within the 60-day period.
From the decision · page 3I. Preliminarily, former Labor Code1 section 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: (a) A petition for reconsideration is deemed to have been denied by the appeals
WCAB Rule 10832
Notice of Intention may be issued for dismissal but is not a final order; objection may be filed and Board may sustain, issue order, or set hearing per WCAB Rule 10832
The Notice of Intention to Dismiss was not a final order, so the petition for reconsideration was premature.
From the decision · page 4II. Turning to the Petition, pursuant to WCAB Rule 10832: (a) The Workers' Compensation Appeals Board may issue a notice of intention for
WCAB Rule 10550
Case may be dismissed for inactivity if not activated within one year after filing or taking off calendar, with 30 days' notice and opportunity to object per WCAB Rule 10550
Defendant's petition for dismissal was premature because it was filed before the 30-day notice period expired, extended by 10 days due to applicant's out-of-state address.
From the decision · page 4Additionally, we find it important here to highlight the fact that on September 27, 2024, applicant filed a notice of change of address informing the parties of her new address in Arizona. Subsequent to this filing, defendant served applicant with a letter notifying her of their intent to dismiss her claim under WCAB Rule 10550, which states, in relevant part that:
What proof carried it
The evidence the panel weighed, by kind.
Applicant's failure to attend three scheduled QME evaluations with Dr. Ryan Culver
From the decision · page 2FACTS Applicant claimed that, while employed by defendant as a delivery associate on October 15, 2022, she sustained an injury arising out of and in the course of employment (AOE/COE) to her right ankle and foot. The parties retained Dr. Ryan Culver as the panel QME. Defendant scheduled an evaluation with Dr. Culver for June 3, 2024. Notice for this evaluation was served on March 2, 2024 to applicant at an address located in San Diego. Applicant did not attend the QME. Defendant rescheduled the evaluation with Dr. Culver for July 29, 2024. Notice for this evaluation was served on June 10, 2024 to applicant at the same address. Applicant was again not in attendance. A petition to compel attendance for a third evaluation scheduled for November 4, 2024 was filed by defendant and served on September 4, 2024. Following the petition, the WCJ issued an order compelling attendance, which was served on September 17, 2024 to applicant at a second San Diego address.
Applicant's out-of-state relocation to Arizona and notice of change of address filed
From the decision · page 2Applicant was again not in attendance. On September 27, 2024, applicant filed a notice of change of address informing parties she had moved out-of-state to an address in Arizona. On December 12, 2024, defendant served applicant's counsel and applicant with correspondence advising of their intention to file a petition to dismiss her case due to inactivity under WCAB Rule 10550. The letter was served on December 12, 2024 to applicant's new Arizona address. On January 13, 2025, defendant filed a petition for dismissal of claim which was also served on applicant at her Arizona address. Thereafter, on January 24, 2025, the WCJ issued a NIT indicating that an order of dismissal without prejudice would "issue twenty (20) days from the date of service hereof, unless good cause to the contrary is shown in writing within said time." The NIT was served on applicant at her Arizona address. On January 31, 2025, applicant filed an "Objection to NOI for Dismissal, or in the Alternative [, a] Petition for Reconsideration Regarding Order to Dismiss."
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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.
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