ADJ11682579 — California WCAB decision

What the panel ordered

Petitions for Reconsideration are dismissed as premature and the matter is returned to the trial level for further proceedings

Petition for Reconsideration from the May 25, 2021 Order Dismissing Case issued by the WCJ following a Notice of Intention to Dismiss for lack of prosecution

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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.

Reconsideration / removalDefendant prevailed

The petition was dismissed as premature because the applicant must file an opening document at the trial level to reinitiate the claim after dismissal without prejudice, and the petition did not suffice to reinitiate the claim at the appellate level.

From the decision · page 1Applicant has filed a Petition for Reconsideration from the May 25, 2021 Order Dismissing Case (Order) issued by the workers' compensation administrative law judge (WCJ). The Order was issued following an April 26, 2021 Notice of Intention to Dismiss Case (NIT) due to lack of prosecution to which there was no objection. In the Petition for Reconsideration, applicant asserts his intention to now prosecute his claim. Based on our review of the record and for the reasons stated below, we will dismiss the petition as premature.

The facts that decided it

The rules the panel named

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

WCAB Rule 10617 (Cal. Code Regs., tit. 8, former § 10397, now § 10617)

A petition for reconsideration may be considered an opening document for purposes of re-initiating a claim.

The Board noted that the petition for reconsideration may serve as an opening document but still must be filed at the trial level to reinitiate the claim.

From the decision · page 2reopen or any other petition or other document that is subject to a statute of limitations or a jurisdictional time limitation shall not be rejected for filing solely on the basis that... the document is not filed in the proper office of the Workers' Compensation Appeals Board... [or] [t]he document has been submitted without the proper form...." (Cal. Code Regs., tit. 8, former § 10397, now § 10617 (eff. Jan. 1, 2020).) Thus, a Petition for Reconsideration may be considered an opening document for purposes of re-initiating a claim.

Nolan v. Workers' Comp. Appeals Bd. (1977) 70 Cal.App.3d 122, 128 [42 Cal.Comp.Cases 401]

A dismissal without prejudice terminates proceedings before the WCAB, requiring a new opening document to reinitiate the claim.

The Board applied Nolan to explain that dismissal without prejudice ends the proceedings and a new filing is required to restart the claim.

From the decision · page 1While we do not issue a decision on this issue here at the appellate level, we note that the language used by applicant in the Petition for Reconsideration appears to demonstrate a desire to re-initiate his claim of injury that should be addressed by a judge at the trial level. The prior dismissal of applicant's claim "without prejudice" had the effect of terminating the proceedings before the Workers' Compensation Appeals Board. (Nolan v. Workers' Comp. Appeals Bd. (1977) 70 Cal.App.3d 122, 128 [42 Cal.Comp.Cases 401].) In order to re-initiate a claim after a dismissal without prejudice, a party must file an opening document such as another Application for Adjudication of Claim or a petition to reinitiate or their equivalent, subject, of course, to the time limits imposed by the statute of limitations.

ADJ11682579 · August 31, 2021

What the panel ordered

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