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ADJ12475830 — California WCAB decision · SimilarCase

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California WCABPanel decision

ADJ12475830 · September 11, 2023

The WCAB panel affirmed the WCJ's Findings of Fact and Order reinstating the applicant's industrial injury claim and vacating the dismissal for lack of prosecution.

Issues decided: 1
Medical opinions weighed: 0
Authorities named: 2
District office: Stockton

What the panel ordered

The WCAB panel affirmed the WCJ's Findings of Fact and Order reinstating the applicant's industrial injury claim and vacating the dismissal for lack of prosecution.

Petition for Reconsideration filed by defendant seeking to overturn WCJ's Findings of Fact and Order reinstating applicant's industrial injury claim after dismissal for lack of prosecution.

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.

Reopening / new and further disabilityApplicant prevailedlow back

The WCJ found good cause to reinstate the claim due to the applicant's credible testimony about being ignored by prior counsel, the impact of the Covid pandemic on medical appointments, and the invalidity of the dismissal order containing self-destruct clauses. The WCAB panel affirmed this finding.

From the decision · page 1We granted reconsideration to further study the legal and factual issues raised by the Petition for Reconsideration filed by defendant.1 This is our Opinion and Decision After Reconsideration.

The facts that decided it

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

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Applicant was ill with Covid twice and had a non-industrial surgical procedure delayed due to the pandemic, causing missed medical appointments.

Favours Applicant prevailed

This explained the applicant's failure to appear at medical appointments, supporting good cause for reinstatement.

From the decision · page 8The applicant had an admitted injury at work. She was confused by her possible lay off status. During this time period the applicant had Covid twice and a very significant medical condition going on. She was supposed to have a surgical procedure but due to the pandemic it was continuously delayed and cancelled.

Applicant's prior attorneys failed to respond to the Notice of Intent to Dismiss and did not represent her interests, leading to dismissal of the claim.

Favours Applicant prevailed

The failure of prior counsel should not penalize the applicant and supports reinstatement on the merits.

From the decision · page 3Sections 10562, 10563, 10563.1, 10755, 10756, 10888 which suspended Dismissal of an Application or Lien Claim for Failure to Appear. As the Petition for Dismissal was reliant on applicant's failures to appear as a few medical appointments, it seems as if the dismissal by the WCJ without prejudice was not valid." (Report and Recommendation on Petition For Reconsideration, 10/10/2022, pp. 2-4.) Here, it is clear from applicant's testimony that Law At Your Side failed to manage her case. Specifically, applicant's prior attorneys failed to respond to the NIT and in doing so failed to represent applicant's interests, which caused her case to be dismissed. Applicant's prior attorneys' failure should not penalize applicant in her pursuit of her industrial injury claim and her case should be decided on the merits. Accordingly, we affirm the F&O.

The dismissal order contained self-destruct clauses rendering it void and invalid.

Favours Applicant prevailed

Invalid dismissal order supports vacating dismissal and reinstating claim.

From the decision · page 2"At trial, the court found the applicant to be a very credible witness and found good cause that the claim should be reinstated as it was in the middle of the Covid Pandemic. In the alternative, the court's dismissal without prejudice contained self-destruct clauses and is therefore void....