ADJ11207885 — California WCAB decision

What the panel ordered

The WCAB granted reconsideration, rescinded the July 12, 2021 dismissal order, and returned the matter to the trial level for further proceedings consistent with the opinion.

Applicant filed a Petition for Removal regarding the July 12, 2021 Order Dismissing Serious & Willful Claim and Order Quashing Depositions issued by the WCJ, which dismissed the petition without prejudice based on a dormant request for dismissal filed on November 12, 2019.

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.

Reconsideration / removalApplicant prevailed

The dismissal order was a final order extinguishing the applicant's substantive right to seek benefits under section 4553 because it was issued beyond the limitations period, and the WCJ failed to provide due process by not issuing a notice of intention allowing the applicant to be heard before dismissal.

From the decision · page 1Applicant filed a Petition for Removal regarding the July 12, 2021 Order Dismissing Serious & Willful Claim and Order Quashing Depositions (Order) issued by the workers' compensation administrative law judge (WCJ). Therein, the WCJ dismissed applicant's petition for increased benefits for serious and willful (S&W) misconduct by the employer pursuant to Labor Code section 4553 without prejudice, based in part on applicant's request for dismissal filed on November 12, 2019. Concurrently with the Petition for Removal, applicant also filed an Objection to Order Dismissing Serious & Willful Claim, as well as a petition entitled Applicant's Labor Code § 5803 Petition to Set Aside and Rescind Dismissal without Prejudice and Request for Dismissal of S&W Petition.1

The facts that decided it

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

The dismissal order was issued approximately one year and eight months after the applicant's request for dismissal, without a notice of intention allowing the applicant to be heard.

Favours Applicant prevailed

This procedural defect violated the applicant's right to due process and was a basis for granting reconsideration and rescinding the dismissal order.

From the decision · page 2We now turn to the substantive issues. The WCJ recommends we deny applicant's petition based on WCAB Rule 10850(a) and "because Applicant himself long ago requested the action that the court eventually took." However, we do not find WCAB Rule 10850(a) controlling. While WCAB rules may indeed be informative in situations even when not directly on point, WCAB Rule 10850(a) states that "Orders of dismissal of Applications for Adjudication of Claim shall issue forthwith upon request by the employee...." (Cal. Code Regs., tit. 8, § 10850(a), emphasis added.) "Forthwith" means immediately and without delay. In this case, applicant filed the Request for Dismissal of the S&W petition on November 12, 2019. The dismissal order was not

The dismissal order was issued beyond the twelve-month limitations period for filing a serious and willful petition under Labor Code section 5407.

Favours Applicant prevailed

Because the order extinguished the applicant's substantive right to seek benefits, it was a final order subject to reconsideration rather than removal.

From the decision · page 2"A dismissal `without prejudice' necessarily means without prejudice to the filing of a new action on the same allegations, so long as it is done within the period of the appropriate statute of limitations." (Eaton Hydraulics Inc. v. Continental Casualty Co. (2005) 132 Cal.App.4th 966, 974-975, fn. 6 [34 Cal Rptr.3d 91].) The limitations period for the filing of an S&W petition is twelve months from the date of injury.2 (Lab. Code, § 5407.) Because the July 12, 2021 Order dismissing the S&W petition is beyond the limitations period, applicant can no longer refile an S&W petition, i.e., his substantive right to seek benefits was extinguished. This makes the order dismissing a final order subject to reconsideration rather than removal.

The rules the panel named

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

Cal. Code Regs., tit. 8, 10850(a) and (b)

Dismissal orders must be issued forthwith upon request by the employee, or after a notice of intention allowing at least 10 days for any adverse party to show good cause to the contrary.

The WCJ did not issue the dismissal order forthwith, nor did it issue a notice of intention allowing the applicant to be heard before dismissal.

From the decision · page 2We now turn to the substantive issues. The WCJ recommends we deny applicant's petition based on WCAB Rule 10850(a) and "because Applicant himself long ago requested the action that the court eventually took." However, we do not find WCAB Rule 10850(a) controlling. While WCAB rules may indeed be informative in situations even when not directly on point, WCAB Rule 10850(a) states that "Orders of dismissal of Applications for Adjudication of Claim shall issue forthwith upon request by the employee...." (Cal. Code Regs., tit. 8, § 10850(a), emphasis added.) "Forthwith" means immediately and without delay. In this case, applicant filed the Request for Dismissal of the S&W petition on November 12, 2019. The dismissal order was not

Labor Code section 5407

The limitations period for filing a serious and willful petition is twelve months from the date of injury.

The dismissal order was issued beyond the twelve-month limitations period, extinguishing the applicant's substantive right to seek benefits under section 4553.

From the decision · page 2"A dismissal `without prejudice' necessarily means without prejudice to the filing of a new action on the same allegations, so long as it is done within the period of the appropriate statute of limitations." (Eaton Hydraulics Inc. v. Continental Casualty Co. (2005) 132 Cal.App.4th 966, 974-975, fn. 6 [34 Cal Rptr.3d 91].) The limitations period for the filing of an S&W petition is twelve months from the date of injury.2 (Lab. Code, § 5407.) Because the July 12, 2021 Order dismissing the S&W petition is beyond the limitations period, applicant can no longer refile an S&W petition, i.e., his substantive right to seek benefits was extinguished. This makes the order dismissing a final order subject to reconsideration rather than removal.

ADJ11207885 · September 13, 2021

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