ADJ11296239 · August 1, 2023

The lien claimant's failure to produce a valid Notice of Representation at lien trial was due to mistake and excusable neglect, and the dismissal was not mandated by the rules; the lien claimant promptly sought relief and attempted to remedy the deficiency, so the dismissal order was rescinded and the matter returned for further proceedings.

From the decision · page 8Here, as in Fox, supra, lien claimant's failure to appear at a hearing where its presence was mandated resulted in the dismissal of the underlying lien claim. And here, as in Fox, lien claimant seeks relief under section 473(b), averring mistake and excusable neglect in its failure to have a valid notice of representation available as a prerequisite to the appearance of a non-attorney representative at lien trial. (Petition, at 4:27.)

Lien claimant's representative failed to produce a valid Notice of Representation at lien trial.

Favours Defendant prevailed

This failure led to the dismissal of the lien claim, which was the subject of the reconsideration petition.

Lien claimant promptly filed a Notice of Representation later the same day, attempting to remedy the deficiency.

Favours Applicant prevailed

This prompt action supported the decision to rescind the dismissal and hear the lien on the merits.

Dismissal of lien claim is not mandated by WCAB Rules for failure to provide valid Notice of Representation.

Favours Applicant prevailed

This legal interpretation allowed the Board to rescind the dismissal and return the matter for further proceedings.

From the decision · page 8We observe that while WCAB Rule 10751 requires the non-attorney representative making an appearance to provide a valid notice of representation, it does not specify a remedy for failure of compliance, and it does not mandate dismissal of the underlying lien claim. (Cal. Code Regs., tit. 8, § 10751.) Similarly, WCAB Rule 10868 specifies that while violation of the rule may give rise to monetary sanctions, attorney's fees, and costs under Labor Code section 5813 and rule 10421, the rule does not require dismissal of the lien claim itself. (Cal. Code Regs., tit. 8, § 10868(d).)

In Fox v. Workers' Comp. Appeals Bd. (1992), Dr. Fox sought relief from dismissal of lien claim due to failure to appear, citing mistake and excusable neglect; the court recognized that lien claimants may seek relief under a procedure similar to Code of Civil Procedure section 473.

The decision relied on the Fox case to support the availability of relief under section 473 for lien claimants.

From the decision · page 7workers' compensation proceedings in Fox v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th

Code of Civil Procedure section 473(b)

Code of Civil Procedure section 473(b) allows relief from judgment or dismissal due to mistake, inadvertence, surprise, or excusable neglect.

Applied to grant relief to lien claimant for failure to produce valid Notice of Representation.

From the decision · page 6Lien claimant's Petition seeks relief under section 473(b), which provides, in relevant part:

Cal. Code Regs., tit. 8, §§ 10751, 10868, 10880

WCAB Rules 10751, 10868, and 10880 require valid Notice of Representation and appearance at lien trials but do not mandate dismissal for failure to comply.

Rules were considered in determining that dismissal was not mandatory and that monetary sanctions may be appropriate instead.

From the decision · page 8We observe that while WCAB Rule 10751 requires the non-attorney representative making an appearance to provide a valid notice of representation, it does not specify a remedy for failure of compliance, and it does not mandate dismissal of the underlying lien claim. (Cal. Code Regs., tit. 8, § 10751.) Similarly, WCAB Rule 10868 specifies that while violation of the rule may give rise to monetary sanctions, attorney's fees, and costs under Labor Code section 5813 and rule 10421, the rule does not require dismissal of the lien claim itself. (Cal. Code Regs., tit. 8, § 10868(d).)

Labor Code section 5813

Labor Code section 5813 authorizes sanctions for bad faith or frivolous actions violating WCAB rules.

Considered for potential sanctions but not for dismissal in this case.

From the decision · page 8However, we also observe that our Rule 10868 specifically provides for the consideration of monetary and other sanctions, and that the WCJ is vested with wide latitude in the consideration of whether a party has engaged in bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. (Lab. Code, § 5813; Cal. Code Regs., tit. 8, § 10421.) We further observe that pursuant to Rule 10421(b)(4), a failure to comply with the Workers' Compensation Appeals Board's Rules of Practice and Procedure may be subject to sanctions "unless that failure

Lien claimant's prompt attempt to remedy the deficiency by filing a Notice of Representation later the same day, although imperfect, favored a hearing on the merits.