ADJ12475830 · September 11, 2023

The WCJ found good cause to reinstate the claim due to the applicant's credible testimony about being ignored by prior counsel, the impact of the Covid pandemic on medical appointments, and the invalidity of the dismissal order containing self-destruct clauses. The WCAB panel affirmed this finding.

From the decision · page 1We granted reconsideration to further study the legal and factual issues raised by the Petition for Reconsideration filed by defendant.1 This is our Opinion and Decision After Reconsideration.

Applicant was ill with Covid twice and had a non-industrial surgical procedure delayed due to the pandemic, causing missed medical appointments.

Favours Applicant prevailed

This explained the applicant's failure to appear at medical appointments, supporting good cause for reinstatement.

From the decision · page 8The applicant had an admitted injury at work. She was confused by her possible lay off status. During this time period the applicant had Covid twice and a very significant medical condition going on. She was supposed to have a surgical procedure but due to the pandemic it was continuously delayed and cancelled.

Applicant's prior attorneys failed to respond to the Notice of Intent to Dismiss and did not represent her interests, leading to dismissal of the claim.

Favours Applicant prevailed

The failure of prior counsel should not penalize the applicant and supports reinstatement on the merits.

From the decision · page 3Sections 10562, 10563, 10563.1, 10755, 10756, 10888 which suspended Dismissal of an Application or Lien Claim for Failure to Appear. As the Petition for Dismissal was reliant on applicant's failures to appear as a few medical appointments, it seems as if the dismissal by the WCJ without prejudice was not valid." (Report and Recommendation on Petition For Reconsideration, 10/10/2022, pp. 2-4.) Here, it is clear from applicant's testimony that Law At Your Side failed to manage her case. Specifically, applicant's prior attorneys failed to respond to the NIT and in doing so failed to represent applicant's interests, which caused her case to be dismissed. Applicant's prior attorneys' failure should not penalize applicant in her pursuit of her industrial injury claim and her case should be decided on the merits. Accordingly, we affirm the F&O.

The dismissal order contained self-destruct clauses rendering it void and invalid.

Favours Applicant prevailed

Invalid dismissal order supports vacating dismissal and reinstating claim.

From the decision · page 2"At trial, the court found the applicant to be a very credible witness and found good cause that the claim should be reinstated as it was in the middle of the Covid Pandemic. In the alternative, the court's dismissal without prejudice contained self-destruct clauses and is therefore void....

LC 5803, LC 5804

Good cause to reopen claim under LC 5803 and LC 5804 when dismissal was without prejudice and applicant acted within statutory period.

The WCJ found good cause to reinstate the claim based on applicant's credible testimony and pandemic-related disruptions.

From the decision · page 8This WCJ finds that good cause exists to allow the applicant reinstatement of her claim and allow her to continue with her industrial injury claim. If a dismissed claim cannot be reopened on the grounds of new and further disability under LC 5814, an applicant may be able to reopen a claim for good cause under LC 5803 and LC 5804.

CCR 10550(f)

Dismissal without prejudice with self-destruct clauses is invalid under CCR 10550(f).

The WCJ found the dismissal order invalid because it contained self-destruct clauses, supporting reinstatement.

From the decision · page 8Was the original dismissal valid? A case may be dismissed after issuance of a 10-day notice of intention to dismiss and an opportunity to be heard, but not by an order with a clause rendering the order null and void if an objection showing good cause is filed (a "self-destruct order") (CCR 10550(f)). Judge Durr's Notice of Intent to Dismiss and his actual Order to Dismiss both contained self-destruct clauses. The court finds that these orders were not valid.

Applicant's credible testimony about being ignored by prior attorney and the impact of the Covid pandemic on medical appointments and case management.

From the decision · page 8At trial, the applicant very credibly testified that she was ignored by her prior attorney's office, never spoke to an attorney, and was completely shocked when she was told that her case was dismissed.