Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 10550
WCAB Rule 10550 authorizes dismissal of inactive cases after notice and opportunity to be heard, but dismissal is discretionary, not mandatory.
Defendant complied with procedural requirements; dismissal requires due process and discretion.
From the decision · page 3The WCAB Rules of Practice and Procedure, section 10550, provide that "[u]nless 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. Such dismissals may be entered at the request of an interested party or upon the
Workers' Compensation Appeals Board's own motion for lack of prosecution." (Cal. Code Regs.,
tit. 8, § 10550, subd. (a).) Although Rule 10550 authorizes dismissal of an inactive case upon
demonstration of the conditions that allow dismissal under the rule, and after affording the
applicant notice and an opportunity to be heard, dismissal is discretionary, not mandatory. (Roth
v. Workers' Comp. Appeals Bd. (1971) 20 Cal.App.3d 452 [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]; Marino v.
Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 485 [67 Cal.Comp.Cases 1273].)
Evid. Code 641
A letter correctly addressed and properly mailed is presumed received in the ordinary course of mail.
WCJ found applicant's bare assertion of non-receipt unpersuasive but reconsideration granted due to due process concerns.
From the decision · page 2The WCJ observes in her report that pursuant to Evid. Code section 641, a letter correctly
addressed and properly mailed is presumed to have been received in the ordinary course of mail.
(Report, p.3, para. 1; Evid. Code. § 641.) Accordingly, the WCJ found applicant's bare assertion
of non-receipt to be unpersuasive. (Ibid.)
Cal. Const. art. XIV, 4
Workers' compensation law must accomplish substantial justice expeditiously and inexpensively without incumbrance.
Supports public policy favoring adjudication on merits over procedural dismissal.
From the decision · page 3Article XIV, section 4 of the California Constitution mandates that the workers'
compensation law shall be carried out "...to the end that the administration of such legislation shall
accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance
of any character..."
Code Civ. Proc. 473(b)
Relief from procedural failure may be granted under a procedure similar to Code of Civil Procedure section 473(b) for mistake, inadvertence, surprise, or excusable neglect.
Supports granting reconsideration to allow full development of evidentiary record.
From the decision · page 4Finally, we note that pursuant to Fox v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th
1196, 1205-1206 [57 Cal.Comp.Cases 149], a party may seek relief from the consequences of a
procedural failure by utilizing a procedure substantially similar to Code of Civil Procedure section
473(b), which provides in pertinent part: