What the panel ordered
The Petition for Reconsideration is granted, the Order Dismissing Case is rescinded as void ab initio, and the matter is returned to the WCJ for further proceedings.
Applicant seeks reconsideration of the Order Dismissing Case issued by the WCJ on February 23, 2024, which dismissed the case without prejudice for lack of prosecution.
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.
The WCJ improperly issued a Notice of Intention to Dismiss after the case was activated for hearing, making the dismissal order void ab initio.
From the decision · page 3Here, the WCJ's February 23, 2024, Order Dismissing Case is a final Order. The WCJ may issue a Notice of Intention (NIT) for any proper purpose. (Cal. Code Regs., tit. 8, § 10832 (a).) A proper purpose includes, but is not limited to, (1) Allowing, disallowing or dismissing a lien; (2) Granting, denying or dismissing a petition; (3) Sanctioning a party; (4) Submitting the matter on the record; or (5) Dismissing an application. (Id.) Pursuant to WCAB Rule 10832 (c), if an objection is filed within the time provided, the Workers' Compensation Appeals Board, in its discretion may: (1) Sustain the objection; (2) Issue an order consistent with the notice of intention together with an opinion on decision; or set the matter for hearing. (Cal. Code Regs., tit. 8, § 10832 (c).) Unless a case is activated for hearing within one year after 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.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's attorney filed a Declaration of Readiness to Proceed on December 26, 2023, activating the case for hearing.
Favours Applicant prevailed
This activation precluded the WCJ from issuing a Notice of Intention to Dismiss for inactivity.
From the decision · page 38, § 10550 (a).) Here, on February 1, 2024, the WCJ issued a NIT to dismiss the case apparently in response to defendant's petition to dismiss filed and served on January 2, 2024. In the instant matter, the WCJ had no authority to issue the NIT. Applicant activated her case for hearing when her attorney filed the DOR on December 26, 2023. Thus, the WCJ improperly issued a NIT to dismiss for inactivity after the case had been activated for hearing. The Petition to Dismiss was served after the DOR was filed, and thus no NIT should have issued in the first instance. As such, the Order of Dismissal is void ab initio. The matter had been continued to February 29, 2024 by the WCJ after applicant's counsel requested same at the January 25, 2024 hearing, however, in lieu of holding that hearing, the WCJ
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Applicant was found permanent and stationary by primary treating physician Paul Aubin, M.D., causation industrial.
From the decision · page 2On the date of the MSC, applicant filed a Report by PTP Paul Aubin, M.D., dated September 22, 2021, indicating that applicant was P&S.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, §§ 5900(a), 5902, 5903
A petition for reconsideration may be taken only from a final order, decision, or award.
The WCJ's Order Dismissing Case is a final order subject to reconsideration.
From the decision · page 2A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v.
Cal. Code Regs., tit. 8, §§ 10550, 10832
The WCJ may issue a Notice of Intention to Dismiss Case for proper purposes including dismissal of an application or petition, but only if the case is not activated for hearing.
The WCJ improperly issued a Notice of Intention to Dismiss after the case was activated for hearing, making the dismissal void ab initio.
From the decision · page 3Here, the WCJ's February 23, 2024, Order Dismissing Case is a final Order. The WCJ may issue a Notice of Intention (NIT) for any proper purpose. (Cal. Code Regs., tit. 8, § 10832 (a).) A proper purpose includes, but is not limited to, (1) Allowing, disallowing or dismissing a lien; (2) Granting, denying or dismissing a petition; (3) Sanctioning a party; (4) Submitting the matter on the record; or (5) Dismissing an application. (Id.) Pursuant to WCAB Rule 10832 (c), if an objection is filed within the time provided, the Workers' Compensation Appeals Board, in its discretion may: (1) Sustain the objection; (2) Issue an order consistent with the notice of intention together with an opinion on decision; or set the matter for hearing. (Cal. Code Regs., tit. 8, § 10832 (c).) Unless a case is activated for hearing within one year after 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.
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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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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