What the panel ordered
Petition for reconsideration dismissed; matter returned to WCJ to treat petition as one to set aside the dismissal order and to allow lien claimant an opportunity to be heard.
Lien claimant Cal State Interpreting petitioned for reconsideration of an order dismissing its lien for nonappearance at a lien conference. The WCAB reviewed the petition and the WCJ's report, and dismissed the petition, returning the matter to the trial level to treat the petition as one to set aside the dismissal order.
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.
Lien claimant failed to appear at the lien conference due to excusable neglect (calendaring error) and was not heard on the merits; due process requires an opportunity to be heard before a lien is dismissed. The petition for reconsideration is dismissed, but the matter is remanded to allow the lien claimant to seek relief from the dismissal order.
From the decision · page 6Lien claimant requests an opportunity to be heard on its Petition and that the Order be set aside because the failure to appear at the February 20, 2025 lien conference was due to "excusable neglect," that is, an inadvertent calendaring error by its calendaring department. Applying the legal principles above, we conclude that lien claimant must be provided with an opportunity to demonstrate why the Order should be vacated, and lien claimant's Petition must be treated as a petition to set aside.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Lien claimant failed to appear at the lien conference due to a calendaring error, which was asserted as excusable neglect.
Favours Applicant prevailed
This fact was the basis for remanding the matter to allow the lien claimant an opportunity to be heard on setting aside the dismissal order.
From the decision · page 3In the Petition For Reconsideration lien claimant's representative states,... Lien Claimant was in the process of filing an Objection to the Notice of Intention to Dismiss Lien (NOI) when Lien Claimant's representative received the Order Dismissing...Lien Claimant failed to appear at the February 20, 2025 Lien Conference was based on inadvertent calendar error. Lien Claimant's calendar department failed to place the matter on the calendar. Order Dismissing and now seeks relief from the consequences of failing to appear.
Lien claimant was served with notice of the hearing and NIT, as shown by proof of service and EAMS records.
Favours Defendant prevailed
This established that the procedural requirements for notice were met, supporting the validity of the dismissal order unless excusable neglect is shown.
From the decision · page 2On December 12, 2024, defendant's non-attorney representative filed a Declaration of Readiness (DOR) to Lien Conference requesting assistance with the resolution of liens. The proof of service shows service of the DOR on CAL STATE INTERPRETING, COLLECTIVE RESOURCES by email on December 12, 2024 and by U.S. mail service on December 13, 2024.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code § 5909
A petition for reconsideration is deemed denied unless acted upon within 60 days from the date a trial judge transmits a case to the appeals board; service of the accompanying report constitutes notice of transmission.
The Board determined the 60-day period commenced on April 24, 2025, when the Report and Recommendation was served and the case transmitted.
From the decision · page 3Former Labor Code section1 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:
Lab. Code § 5803
The Board has continuing jurisdiction to rescind, alter, or amend any order, decision, or award upon notice and opportunity to be heard, good cause appearing therefor.
The Board cited its authority to set aside or amend orders if good cause is shown and due process is provided.
From the decision · page 4"The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of [Division 4]... At any time, upon notice and after the opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor." (Lab. Code, § 5803.)
Cal. Code Regs., tit. 8, §§ 10875, 10888
All defendants and lien claimants must appear at all lien conferences; dismissal for failure to appear requires notice of the hearing to the lien claimant.
Lien claimant was served with notice and failed to appear; the Board must ensure due process before dismissing the lien.
From the decision · page 6WCAB Rule 10875 requires that all defendants and lien claimants must appear at all lien conferences. (Cal. Code Regs., tit. 8, § 10875.) When a lien claimant fails to appear, the WCJ may issue an NIT pursuant to WCAB Rule 10888, or may defer the lien. WCAB Rule 10888(c) states that "A dismissal for failure to appear at a hearing shall only issue if the lien claimant was provided with notice of the lien conference or trial." (Cal. Code Regs., tit. 8, § 10888(c).) In Fox, supra, 4 Cal.App.4th at p. 1205, the Court of Appeal held "that lien claimants may seek relief from the consequences of a failure to appear by utilizing a procedure substantially similar to Code of Civil Procedure section 473, until such time as the matter is more specifically addressed by statutory provision or Board rule." The Court explained, further, that, "[i]t is the policy of the law to favor, whenever possible, a hearing on the merits. Appellate courts are much more disposed to affirm an order when the result is to compel a trial on the merits than when the default judgment is allowed to stand. Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default." (Id. at pp. 1205-1206.)
Fox v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th 1196
Lien claimants may seek relief from the consequences of a failure to appear by a procedure similar to Code of Civil Procedure section 473; policy favors hearing on the merits.
The Board applied this standard to allow the lien claimant an opportunity to be heard on setting aside the dismissal order.
From the decision · page 6WCAB Rule 10875 requires that all defendants and lien claimants must appear at all lien conferences. (Cal. Code Regs., tit. 8, § 10875.) When a lien claimant fails to appear, the WCJ may issue an NIT pursuant to WCAB Rule 10888, or may defer the lien. WCAB Rule 10888(c) states that "A dismissal for failure to appear at a hearing shall only issue if the lien claimant was provided with notice of the lien conference or trial." (Cal. Code Regs., tit. 8, § 10888(c).) In Fox, supra, 4 Cal.App.4th at p. 1205, the Court of Appeal held "that lien claimants may seek relief from the consequences of a failure to appear by utilizing a procedure substantially similar to Code of Civil Procedure section 473, until such time as the matter is more specifically addressed by statutory provision or Board rule." The Court explained, further, that, "[i]t is the policy of the law to favor, whenever possible, a hearing on the merits. Appellate courts are much more disposed to affirm an order when the result is to compel a trial on the merits than when the default judgment is allowed to stand. Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default." (Id. at pp. 1205-1206.)
What proof carried it
The evidence the panel weighed, by kind.
Lien claimant failed to appear at the lien conference due to a calendaring error, which was asserted as excusable neglect and not disputed by other parties.
From the decision · page 3In the Petition For Reconsideration lien claimant's representative states,... Lien Claimant was in the process of filing an Objection to the Notice of Intention to Dismiss Lien (NOI) when Lien Claimant's representative received the Order Dismissing...Lien Claimant failed to appear at the February 20, 2025 Lien Conference was based on inadvertent calendar error. Lien Claimant's calendar department failed to place the matter on the calendar. Order Dismissing and now seeks relief from the consequences of failing to appear.
Proof of service and EAMS records showed that lien claimant was served with notice of the hearing and NIT, supporting that notice requirements were met.
From the decision · page 2On December 12, 2024, defendant's non-attorney representative filed a Declaration of Readiness (DOR) to Lien Conference requesting assistance with the resolution of liens. The proof of service shows service of the DOR on CAL STATE INTERPRETING, COLLECTIVE RESOURCES by email on December 12, 2024 and by U.S. mail service on December 13, 2024.
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