ADJ17889850 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; Order Dismissing Case rescinded; defendant's Petition to Dismiss denied; matter returned for reassignment to a new WCJ for further proceedings.

Applicant sought reconsideration of an order dismissing his case for failure to prosecute; the WCJ had dismissed the case after finding applicant's objection was not verified and did not show good cause. The Appeals Board previously voided an earlier dismissal as premature, and now reviews the subsequent dismissal order.

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This docket was decided more than once. Shown here is the latest released decision; we also hold April 14, 2025.

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.

Jurisdiction / venueApplicant prevailed

Applicant cured the defect of lack of verification by filing a verified affidavit; applicant showed good cause for inactivity; due process requires the case be heard on the merits.

From the decision · page 5Further, applicant showed good cause why his case should not be dismissed, as required by the NIT. In the Affidavit, applicant stated that he had previously changed his phone number and forgot to inform his attorney and that he was dealing with some personal hardships that distracted him. (Affidavit, p. 1.) He further stated that he did not intend to abandon or stop pursuing his case and that he was unaware that his lack of communication could lead to dismissal of his claim. (Affidavit, p. 1.) He had reestablished communication with his attorney on or around January 9, 2025, and was committed to actively participating in the legal process going forward. (Affidavit, pp. 1-2.) This verified Affidavit from applicant shows good cause not to dismiss applicant's case.

The facts that decided it

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

Applicant filed a verified affidavit explaining his prior inactivity and intent to pursue the case.

Favours Applicant prevailed

Showed good cause not to dismiss the case, satisfying the requirement of the Notice of Intent to Dismiss.

From the decision · page 5Further, applicant showed good cause why his case should not be dismissed, as required by the NIT. In the Affidavit, applicant stated that he had previously changed his phone number and forgot to inform his attorney and that he was dealing with some personal hardships that distracted him. (Affidavit, p. 1.) He further stated that he did not intend to abandon or stop pursuing his case and that he was unaware that his lack of communication could lead to dismissal of his claim. (Affidavit, p. 1.) He had reestablished communication with his attorney on or around January 9, 2025, and was committed to actively participating in the legal process going forward. (Affidavit, pp. 1-2.) This verified Affidavit from applicant shows good cause not to dismiss applicant's case.

The WCJ's order was issued before the applicant's response deadline and without proper notice.

Favours Applicant prevailed

The order was void ab initio for lack of due process, requiring rescission and further proceedings.

From the decision · page 4"Unless a case is activated for hearing within one year after the filing of the Application for Adjudication of Claim or the entry of an order taking off calendar, the case may be dismissed after notice and opportunity to be heard." (Cal. Code Regs., tit. 8, § 10550(a), emphasis added.) Following the NIT requiring the applicant to show good cause as to why the case should not be dismissed, the WCJ issued the earlier Order Dismissing Case. That Order Dismissing Case was void ab initio as the WCJ issued it before the deadline for a response or objection from applicant. We also observed that both the NIT and the Order served on applicant were returned to the district office for having an incorrect address, and thus, both the NIT and the Order may have been void. We further recommended that the WCJ consider setting a status conference. (Opinion and Order and fn., pp. 4-5.) The WCJ thereafter, however, simply re-issued a new Order Dismissing Case. Therefore, we will address defendant's Petition to Dismiss.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Cal. Code Regs., tit. 8, § 10550(a); Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151; San Bernardino Cmty. Hosp. v. Workers' Comp. Appeals Bd. (1999) 74 Cal.App.4th 928; Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284

A case may be dismissed for lack of prosecution only after notice and opportunity to be heard; due process requires notice and opportunity to be heard.

The WCJ's order was void because it was issued before applicant's response deadline and without proper notice; due process requires the case be heard on the merits.

From the decision · page 4As discussed in the previous Opinion and Order by the Appeals Board, all parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) The "essence of due process is simply notice and the opportunity to be heard." (San Bernardino Cmty. Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928, 936 [64 Cal.Comp.Cases 986].) Determining an issue without giving the parties notice and an opportunity to be heard violates the parties' rights to due process. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584], citing Rucker, supra, at pp. 157-158.) Due process requires

Cal. Code Regs., tit. 8, § 10510(d); Torres v. Contra Costa Schs. Ins. Group (2014) 79 Cal. Comp. Cases 1181

Lack of verification does not necessitate automatic dismissal; a party may correct a lack of verification within a reasonable time after notice of the defect.

Applicant cured the defect by filing a verified affidavit after receiving notice.

From the decision · page 53 In the Order of April 17, 2025, as well as in the Report, the WCJ states that the case should be dismissed due to a lack of verification or a signature by applicant, as required by WCAB Rule 10510 (Cal. Code Regs., tit. 8, § 10510(d)). (Order, pp. 2-5.) "However, it has long been recognized that lack of verification does not necessitate automatic dismissal of a nonconforming pleading." (Torres v. Contra Costa Schs. Ins. Group (2014) 79 Cal. Comp. Cases 1181, 1186, citing United Farm Workers v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 915; Mullane v. Industrial Acc. Com. (1931) 118 Cal.App. 283, 286; Wings West Airlines v. Workers' Comp. Appeals Bd. (Nebelon) (1986) 187 Cal.App.3d 1047 [51 Cal.Comp.Cases 609]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 712, fn.3 [57 Cal.Comp.Cases 230].) A party may correct a lack of verification within a reasonable time after receiving notice of the defect. (Torres v. Contra Costa Schs. Ins. Group, supra, 79 Cal. Comp. Cases at p. 1186.) Applicant did not receive notice of the defect prior to the original Order Dismissing Case of January 9, 2025. Applicant has now filed the verified Affidavit on April 24, 2025. We find that applicant has cured the defect of lack of verification.

ADJ17889850 · July 7, 2025

What the panel ordered

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The facts that decided it

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