ADJ12320904 · January 27, 2025

The WCAB found that applicant did not receive notice or an opportunity to be heard before dismissal, and that her petition should be treated as a motion to set aside the dismissal. However, the record was insufficient to grant relief, so the matter was returned to the trial level for further proceedings.

From the decision · page 8Thus, we will return this matter to the trial level for further proceedings. Upon return to the trial level, applicant's Petition should be treated as a petition to set aside, and a hearing should be set to allow applicant to put on evidence, including but not limited to evidence in support of her assertions that she was hospitalized, and then became homeless, and did not receive any of the 2023 notices regarding the pending dismissal, and evidence of whether section 5506 applies to grant applicant relief. As explained above, the WCJ should also consider the amended Application as a timely filed petition to reopen.

Applicant did not receive notice of the dismissal or opportunity to be heard because she was no longer living at the address on file due to circumstances beyond her control (hospitalization, homelessness).

Favours Applicant prevailed

Due process requires notice and opportunity to be heard before dismissal; lack of notice undermined the dismissal's validity.

From the decision · page 6Here, the Petition to Dismiss was filed on March 14, 2023, and the NIT and Order of Dismissal were served on May 2 and May 24, 2023, respectively. Despite the Proofs of Service which indicate that defendant timely served these documents on applicant at her address listed on the Official Address Record (OAR) it is unclear if the applicant ever received these documents. Applicant contends in her Petition that she was hospitalized due to abuse perpetrated by her boyfriend and then became homeless, shortly after the May 2021 PQME evaluation. Thus, it appears that through no fault of her own, applicant no longer lived at the address on the OAR, at the time these documents were served in 2023, and did not receive these notices. Pursuant to WCAB Rule 10550, applicant had a due process right to notice and an opportunity to be heard, prior to her case being dismissed. (Cal. Code Regs., tit. 8, § 10550(a).) Here, it appears that she had neither notice nor an opportunity to be heard.

Applicant promptly sought relief after learning of the dismissal and filed an amended Application within five years of the injury.

Favours Applicant prevailed

Prompt action and timely filing support treating the petition as a motion to set aside and support jurisdiction to reopen the case.

From the decision · page 7On October 13, 2023, applicant's attorney filed an amended Application claiming injury on June 17, 2019, and alleging that applicant wished to pursue her case. Applicant's amended Application was filed less than five years from the date of injury. Thus, pursuant to section 5804, it appears that the Appeals Board has jurisdiction to rescind, alter or amend the May 22, 2023 order dismissing. (Lab. Code, § 5804, 5410; Bland, supra, 3 Cal.3d at pp. 328-329; see also General

Cal. Code Regs., tit. 8, § 10550

WCAB Rule 10550 provides for administrative dismissal of a case not activated for hearing within one year after filing, after notice and opportunity to be heard; dismissal is discretionary, not mandatory.

Applicant must have notice and opportunity to be heard before dismissal; here, she did not receive notice, so due process was not satisfied.

From the decision · page 5II. WCAB Rule 10550 provides for administrative dismissal of a case not 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, after notice and opportunity to be heard. (Cal. Code Regs., tit. 8, § 10550(a).) A letter must be sent to applicant and applicant's attorney, at least 30 days prior to the filing of the petition to dismiss, letting applicant know that a petition will be filed unless applicant objects in writing. (Cal. Code Regs., tit. 8, § 10550(b).) The petition must be filed with a copy of the letter and served on all parties. (Cal. Code Regs., tit. 8, § 10550(c), (e).) The case may be dismissed after issuance of a 10-day notice of intention (NIT) to dismiss and an opportunity to be heard. (Cal. Code Regs., tit. 8, § 10550(f), 10832.) Under WCAB Rule 10550, dismissal is discretionary, not mandatory. (Roth v. Workers' Comp. Appeals Bd. (1971) 20 Cal.App.3d 452, 458 [36 Cal.Comp.Cases 604].) There is a strong public policy favoring disposition of cases on their merits rather than on procedural grounds. (Bland v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 324 [35 Cal.Comp.Cases 513]; Martino v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 485 [67 Cal.Comp.Cases 1273]; Moore v. Waste Mgmt. (2014) 2014 Cal.Wrk.Comp.P.D.

Code Civ. Proc. § 473; Lab. Code § 5506

The Appeals Board may grant relief from a dismissal taken against a party through mistake, inadvertence, surprise, or excusable neglect.

Applicant's circumstances may justify relief from dismissal if excusable neglect is shown.

From the decision · page 6Code of Civil Procedure section 473 provides in pertinent part, "[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Cal. Code Civ. Proc., § 473(b).) Section 5506 allows the Appeals Board to grant relief under Code of Civil Procedure section 473. (Lab. Code, § 5506; See Fox v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th 1196, 1205 [57 Cal.Comp.Cases 149].)

Lab. Code § 5804; Beaida v. Workers' Comp. Appeals Bd. (1968) 263 Cal.App.2d 204

Petitions to reopen under section 5804 may be informal so long as the pleading provides an indication that an applicant wishes to pursue their case.

Applicant's amended Application was timely and indicated intent to pursue the case, supporting jurisdiction to set aside the dismissal.

From the decision · page 7On October 13, 2023, applicant's attorney filed an amended Application claiming injury on June 17, 2019, and alleging that applicant wished to pursue her case. Applicant's amended Application was filed less than five years from the date of injury. Thus, pursuant to section 5804, it appears that the Appeals Board has jurisdiction to rescind, alter or amend the May 22, 2023 order dismissing. (Lab. Code, § 5804, 5410; Bland, supra, 3 Cal.3d at pp. 328-329; see also General

Applicant alleged she was hospitalized due to domestic violence, became homeless, and did not receive notice of dismissal; the record supports she did not live at the address on file when notices were served.

From the decision · page 6Here, the Petition to Dismiss was filed on March 14, 2023, and the NIT and Order of Dismissal were served on May 2 and May 24, 2023, respectively. Despite the Proofs of Service which indicate that defendant timely served these documents on applicant at her address listed on the Official Address Record (OAR) it is unclear if the applicant ever received these documents. Applicant contends in her Petition that she was hospitalized due to abuse perpetrated by her boyfriend and then became homeless, shortly after the May 2021 PQME evaluation. Thus, it appears that through no fault of her own, applicant no longer lived at the address on the OAR, at the time these documents were served in 2023, and did not receive these notices. Pursuant to WCAB Rule 10550, applicant had a due process right to notice and an opportunity to be heard, prior to her case being dismissed. (Cal. Code Regs., tit. 8, § 10550(a).) Here, it appears that she had neither notice nor an opportunity to be heard.