ADJ15017749 · September 25, 2025

Defendant failed to explain its failure to file exhibits as mistake, inadvertence, surprise, or excusable neglect, and did not provide an affidavit of fault; WCJ did not abuse discretion in denying relief.

From the decision · page 5Although a lack of prejudice may be a relevant factor in determining the terms under which relief may be granted pursuant to Code of Civil Procedure section 473(b), it does not itself indicate entitlement to relief. In the absence of any explanation for defendant's failure to file its exhibits, we cannot find fault with the WCJ's decision not grant relief. Furthermore, we note that the WCJ was apparently willing to grant relief subject to the payment of reasonable compensatory legal fees and costs, but that defendant's hearing representative appears to have rejected that offer, electing instead to proceed to trial without exhibits. Under the circumstances, we find no abuse of discretion.

Defendant made payments to cost petitioner after the cost petition and before trial, and cost petitioner's representative was aware; to prevent unjust enrichment, defendant is entitled to credit for those payments.

From the decision · page 7Accordingly, we will amend the WCJ's order to provide that defendant's liability shall be reduced by any payments it made to cost petitioner after the filing of the Petition to Resolve Non- IBR Medical-Legal Dispute but prior to trial. Although we will reserve jurisdiction to the WCJ in the event of a dispute between the parties as to the proper amount due to cost petitioner, given the representations in the Petition it should be a simple matter for the parties to determine the amount tendered, and to subtract it from the amount awarded by the WCJ. We therefore strongly encourage the parties to resolve the matter among themselves without further need for judicial intervention. We also caution defendant's representative that our leniency on this matter should

Sanctions issue deferred to WCJ for further hearing; Board notes that proceeding to trial on issues with no evidentiary support can be sanctionable, but leaves determination to WCJ.

From the decision · page 6Because the WCJ deferred any imposition of sanctions, this issue is, properly speaking, premature, and should be addressed by the WCJ in the first instance after a properly noticed hearing. We observe, however, that a party proceeding to trial on an issue that it knows that it cannot possibly prevail on given the state of the evidence can validly be found to have engaged in frivolous litigation and sanctionable behavior, even if the burden of proof nominally lies with the other party. We leave the question of whether such behavior occurred here to the sound discretion

Defendant made payments to cost petitioner after the cost petition and before trial, and cost petitioner's representative was aware of these payments.

Favours Defendant prevailed

Board amended award to allow defendant credit for these payments to prevent unjust enrichment.

From the decision · page 7Although we disregarded the exhibits attached to the Petition in support of these contentions because they are not part of the adjudication record, we will accept the representations in the Petition for Reconsideration itself as an offer of proof that these payments were made. Moreover, we note that the Answer does not dispute these representations or otherwise contest that cost petitioner did in fact receive and cash these checks. Accordingly, it appears there is no reason to question that these payments were in fact made prior to the submission of the issue at trial, or that cost petitioner's hearing representative was actually aware of them at the time of trial.

Defendant failed to file exhibits in EAMS and did not provide an affidavit of fault or explanation for the failure.

Favours Applicant prevailed

Board found no abuse of discretion in WCJ's refusal to admit defendant's evidence or grant relief under CCP § 473(b).

From the decision · page 5Although a lack of prejudice may be a relevant factor in determining the terms under which relief may be granted pursuant to Code of Civil Procedure section 473(b), it does not itself indicate entitlement to relief. In the absence of any explanation for defendant's failure to file its exhibits, we cannot find fault with the WCJ's decision not grant relief. Furthermore, we note that the WCJ was apparently willing to grant relief subject to the payment of reasonable compensatory legal fees and costs, but that defendant's hearing representative appears to have rejected that offer, electing instead to proceed to trial without exhibits. Under the circumstances, we find no abuse of discretion.

Produced five reports, three of which were found compensable as medical-legal expenses; one report's billing code was found appropriate for a primary treating physician and thus compensable as a medical-legal expense.

WCJ and Board found three of five reports compensable; billing code for March 8, 2022 report was appropriate for PTP and thus compensable as medical-legal expense.

From the decision · page 6We turn to defendant's other contentions with this unexcused failure to introduce evidence in mind. With regard to defendant's contention that the March 8, 2022 report was not a medical- legal expense, and instead should have been reimbursed via the filing of a lien, we find that the evidence supports the WCJ's finding that the report was a medical-legal expense. Defendant's basis for contesting whether the report was a medical-legal expense appears to be the billing codes utilized. (See Petition for Reconsideration, at p. 6.) Defendant fails to develop this argument, however, either by citation to the record or to the law to support its argument that the billing codes in question per se preclude a finding that the report was a medical-legal report. As noted by the WCJ, one of the billing codes used appears appropriate when generated by a primary treating physician. (See Report, at p. 5; Cal. Code Regs., tit. 8, § 9789.14(b)(3).) We therefore agree with the WCJ's determination that the report is properly considered a medical-legal expense not subject to the filing of a lien.

Labor Code § 5704

Labor Code section 5704 allows evidence added to the record otherwise than during the course of an open hearing, not applicable to trial setting.

Defendant not entitled to introduce evidence at trial without prior filing.

From the decision · page 6open hearing," and therefore has no application to a trial setting. (Lab. Code, § 5704.) We therefore affirm the WCJ's decision to decide the matter based on cost petitioner's exhibits alone.

Labor Code § 5813; Torres (2012 en banc) 77 Cal. Comp. Cases 1113

Sanctions may be imposed for frivolous litigation conduct, including proceeding to trial on issues with no evidentiary support.

Sanctions issue deferred to WCJ for further hearing.

From the decision · page 6Because the WCJ deferred any imposition of sanctions, this issue is, properly speaking, premature, and should be addressed by the WCJ in the first instance after a properly noticed hearing. We observe, however, that a party proceeding to trial on an issue that it knows that it cannot possibly prevail on given the state of the evidence can validly be found to have engaged in frivolous litigation and sanctionable behavior, even if the burden of proof nominally lies with the other party. We leave the question of whether such behavior occurred here to the sound discretion

Labor Code § 5909(a)

A petition for reconsideration is deemed denied unless acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

Board must act within 60 days of transmission; decision was timely issued.

From the decision · page 3Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

Cal. Code Regs., tit. 8, § 10945(c)

Documents not part of the adjudication file may not be attached to a petition for reconsideration unless newly discovered evidence; attaching such documents may subject party to sanctions.

Board admonished defendant for attaching non-record documents to petition.

From the decision · page 4Three exhibits were attached to the Petition for Reconsideration. Defendant's hearing representatives are admonished that documents that are not part of the adjudication file may not be attached to a petition for reconsideration unless a ground for the petition is newly discovered evidence, which is not the case here. (Cal. Code Regs., tit. 8, § 10945(c); see Cal. Code Regs., tit. 8, § 10803 [record of proceedings].) Copies of documents that have already been made part of the adjudication file may not be attached (id.) and doing so may subject the offending party to sanctions. (Lab. Code, § 5813; Cal. Code Regs., tit. 8, § 10421.) We trust that defendant's hearing representatives will take more care in future to avoid violation of these rules.

Code Civ. Proc. § 473(b)

Relief from judgment for mistake, inadvertence, surprise, or excusable neglect requires an affidavit of fault and explanation; lack of prejudice alone does not entitle party to relief.

Defendant did not provide affidavit or explanation; relief denied.

From the decision · page 5Initially, we note that although defendant seeks relief under Code of Civil Procedure section 473(b), defendant's hearing representative makes no attempt to actually explain how its failure to upload exhibits into EAMS was the product of mistake, inadvertence, surprise, or excusable neglect, nor does the Petition include an affidavit of fault. Instead, the Petition focuses on an alleged lack of prejudice to cost petitioner, given that defendant had listed the exhibits in question on the Pre-trial Conference Statement. (Id. at p. 7.)

Defendant failed to file exhibits in EAMS and proceeded to trial without them; cost petitioner's exhibits were admitted and formed the basis for the decision.

From the decision · page 2Cost petitioner's exhibits were admitted. (Id. at pp. 4-5.) Defendant's exhibits were not admitted because defendant failed to file the exhibits listed on the Pre-trial Conference Statement in the Electronic Adjudication Management System ("EAMS").

Cost petitioner's representative was aware of payments made by defendant after the cost petition and before trial, supporting credit to defendant.

From the decision · page 7Although we disregarded the exhibits attached to the Petition in support of these contentions because they are not part of the adjudication record, we will accept the representations in the Petition for Reconsideration itself as an offer of proof that these payments were made. Moreover, we note that the Answer does not dispute these representations or otherwise contest that cost petitioner did in fact receive and cash these checks. Accordingly, it appears there is no reason to question that these payments were in fact made prior to the submission of the issue at trial, or that cost petitioner's hearing representative was actually aware of them at the time of trial.