ADJ1993931 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; WCJ's Order dismissing lien rescinded; matter returned to trial level for further proceedings.

Petition for Reconsideration filed by lien claimant Superior Med Surgical, Inc. seeking review of WCJ's Order dismissing lien for failure to object to Notice of Intention to Dismiss.

Read the official decision →

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.

Other disputed issueApplicant prevailed

The lien claimant's objection was filed in the wrong case and not considered by the WCJ, resulting in an insufficient record to evaluate the dismissal order.

From the decision · page 3II. The WCJ may issue a notice of intention for any proper purpose, including allowing, disallowing or dismissing a lien. (Cal. Code Regs., tit. 8, § 10832(a).) Therefore, the WCJ correctly issued the NOI in this instance after lien claimant failed to appear on August 17, 2022. However, our review of the record in EAMS shows that the lien claimant made a mistake and filed the Objection in the wrong case. Thus, as the Objection was incorrectly filed in EAMS and the WCJ therefore did not consider it when dismissing the lien claim, the issue that we face on reconsideration is that there is an insufficient record to evaluate the WCJ's Order. The statutory and regulatory duties of a WCJ include the issuance of a decision that complies with Labor Code section 5313. "The Labor Code and the Board's rules set forth what must be included in a proper trial record.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Lien claimant filed an objection to the Notice of Intention to Dismiss but it was filed in the wrong case in EAMS and not considered by the WCJ.

Favours Applicant prevailed

This procedural error resulted in the WCJ dismissing the lien due to lack of objection, which was the basis for reconsideration and rescission of the order.

From the decision · page 2The Events section in the Electronic Adjudication Management System (EAMS), shows that an Objection to NOI to Dismiss (Objection) was filed on August 26, 2022, with a notation that it was filed in the wrong case; the Objection does not appear in the FileNet in EAMS.

The Appeals Board failed to act on the Petition for Reconsideration within 60 days through no fault of the parties.

Favours Applicant prevailed

This failure tolled the time to act on the petition, making the petition timely and justifying granting reconsideration.

From the decision · page 2I. A petition is generally considered denied by operation of law if the Appeals Board does not grant the petition within 60 days after it is filed. (Lab. Code, § 5909.)1 However, we believe that "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice..." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied the applicant's petition for reconsideration because it had not acted on the petition within the statutory time limits of Labor Code section 5909. This occurred because the Appeals Board had misplaced the file, through no fault of the parties. The Court of Appeal reversed the Appeals Board's decision, holding that the time to act on applicant's petition was tolled during the period that the file was misplaced. (Id. at p. 1108.) Like the Court in Shipley, "we are not convinced that the burden of the system's inadequacies should fall on [a party]." (Id.) In this case, lien claimant filed the petition on

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, 5909

A petition is considered denied by operation of law if not acted upon within 60 days after filing (Lab. Code, 5909).

The Appeals Board's failure to act on the petition within 60 days was tolled due to no fault of the parties.

From the decision · page 2I. A petition is generally considered denied by operation of law if the Appeals Board does not grant the petition within 60 days after it is filed. (Lab. Code, § 5909.)1 However, we believe that "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice..." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied the applicant's petition for reconsideration because it had not acted on the petition within the statutory time limits of Labor Code section 5909. This occurred because the Appeals Board had misplaced the file, through no fault of the parties. The Court of Appeal reversed the Appeals Board's decision, holding that the time to act on applicant's petition was tolled during the period that the file was misplaced. (Id. at p. 1108.) Like the Court in Shipley, "we are not convinced that the burden of the system's inadequacies should fall on [a party]." (Id.) In this case, lien claimant filed the petition on

Lab. Code, 5313; Cal. Code Regs., tit. 8, 10803

The WCJ's decision must be based on admitted evidence in the record and comply with Lab. Code 5313 and Cal. Code Regs., tit. 8, 10803.

The WCJ's Order dismissing lien was based on an incomplete record as the objection was not considered, making the record insufficient.

From the decision · page 3II. The WCJ may issue a notice of intention for any proper purpose, including allowing, disallowing or dismissing a lien. (Cal. Code Regs., tit. 8, § 10832(a).) Therefore, the WCJ correctly issued the NOI in this instance after lien claimant failed to appear on August 17, 2022. However, our review of the record in EAMS shows that the lien claimant made a mistake and filed the Objection in the wrong case. Thus, as the Objection was incorrectly filed in EAMS and the WCJ therefore did not consider it when dismissing the lien claim, the issue that we face on reconsideration is that there is an insufficient record to evaluate the WCJ's Order. The statutory and regulatory duties of a WCJ include the issuance of a decision that complies with Labor Code section 5313. "The Labor Code and the Board's rules set forth what must be included in a proper trial record.

ADJ1993931 · June 8, 2023

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

The rules the panel named

What proof carried it

About this page