What the panel ordered
The August 19, 2022 Order Denying Petition to Dismiss is affirmed.
Defendant sought reconsideration of the WCJ's August 19, 2022 Order Denying Petition to Dismiss; the Board granted reconsideration to further study the issues and now issues its decision after reconsideration.
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.
Defendant failed to serve applicant with the required notice under WCAB Rule 10550(b), making the Petition to Dismiss defective and violating applicant's due process rights. Additionally, the cases were reactivated for hearing, restarting the one-year period for dismissal under Rule 10550(a), rendering the issue moot.
From the decision · page 3In the instant case, defendant failed to serve applicant with a copy of the letter indicating defendant's intention to seek dismissal of the claim in contravention to WCAB Rule 10550(b). Defendant served only applicant's attorney and American Claims Management. As indicated by the WCJ, failure to serve notice to applicant not only makes defendant's Petition to Dismiss defective, but "violates applicant's right to due process." (Report, p. 3.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant failed to serve applicant with the required notice of intent to dismiss under WCAB Rule 10550(b), serving only applicant's attorney and administrator.
Favours Applicant prevailed
This procedural defect violated applicant's due process rights and rendered the Petition to Dismiss defective.
From the decision · page 3In the instant case, defendant failed to serve applicant with a copy of the letter indicating defendant's intention to seek dismissal of the claim in contravention to WCAB Rule 10550(b). Defendant served only applicant's attorney and American Claims Management. As indicated by the WCJ, failure to serve notice to applicant not only makes defendant's Petition to Dismiss defective, but "violates applicant's right to due process." (Report, p. 3.)
Both cases were reactivated for hearing after the Petition for Dismissal was filed, as confirmed by Minutes of Hearing, restarting the one-year period for dismissal.
Favours Applicant prevailed
This made the one-year inactivity period under WCAB Rule 10550(a) inapplicable, rendering the dismissal issue moot.
From the decision · page 3Further, it appears that after defendant's July 14, 2022 filing of the Petition for Dismissal, both cases were reactivated for hearing, as confirmed by Minutes of Hearing dated January 10, 2022, April 5, 2022, and July 18, 2022. As such, the one-year period outlined under WCAB Rule 10550(a) restarted as of July 18, 2022. Dismissal pursuant to WCAB Rule 10550(a) is therefore a moot issue.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs. § 10550(a), (b)
Dismissal of inactive cases is discretionary, not mandatory, and requires notice to applicant under WCAB Rule 10550(a) and (b).
Defendant's failure to serve applicant with notice rendered the Petition to Dismiss defective and violated due process.
From the decision · page 3In the instant case, defendant failed to serve applicant with a copy of the letter indicating defendant's intention to seek dismissal of the claim in contravention to WCAB Rule 10550(b). Defendant served only applicant's attorney and American Claims Management. As indicated by the WCJ, failure to serve notice to applicant not only makes defendant's Petition to Dismiss defective, but "violates applicant's right to due process." (Report, p. 3.)
Cal. Code Regs. § 10752
Either applicant or applicant's attorney may appear at hearings; applicant's personal appearance is not required if represented.
Applicant's attorney appeared at hearings, satisfying the requirement for appearance.
From the decision · page 4The clear language of WCAB Rule 10752, makes no requirement that applicant appear alongside her attorney at hearings. The rule plainly states that either applicant or applicant's attorney shall appear at hearings.
What proof carried it
The evidence the panel weighed, by kind.
Defendant failed to serve applicant with the required notice of intent to dismiss, serving only applicant's attorney and administrator, violating due process.
From the decision · page 3In the instant case, defendant failed to serve applicant with a copy of the letter indicating defendant's intention to seek dismissal of the claim in contravention to WCAB Rule 10550(b). Defendant served only applicant's attorney and American Claims Management. As indicated by the WCJ, failure to serve notice to applicant not only makes defendant's Petition to Dismiss defective, but "violates applicant's right to due process." (Report, p. 3.)
Both cases were reactivated for hearing after the Petition for Dismissal was filed, as confirmed by Minutes of Hearing, restarting the one-year period for dismissal.
From the decision · page 3Further, it appears that after defendant's July 14, 2022 filing of the Petition for Dismissal, both cases were reactivated for hearing, as confirmed by Minutes of Hearing dated January 10, 2022, April 5, 2022, and July 18, 2022. As such, the one-year period outlined under WCAB Rule 10550(a) restarted as of July 18, 2022. Dismissal pursuant to WCAB Rule 10550(a) is therefore a moot issue.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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