ADJ16905183 — California WCAB decision

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

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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 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.

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.

work activityfavours Defendant prevailed

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.

Other evidencefavours neutral

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."

ADJ16905183 · April 3, 2025

What the panel ordered

What was disputed, and how it came out

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The rules the panel named

What proof carried it

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