What the panel ordered
Petition for Reconsideration dismissed; matter returned to trial level for further proceedings treating petition as a petition to set aside and/or reopen
Petition for Reconsideration filed by applicant after WCJ dismissed case without prejudice for lack of prosecution
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.
Applicant's petition for reconsideration was dismissed because the Board found no evidence admitted to the record supporting applicant's claim of being out of the country and not receiving notice, and returned the matter to the trial level for further proceedings to develop the record and treat the petition as a petition to set aside and/or reopen.
From the decision · page 5Here, there is currently no evidence admitted into the record regarding applicant's allegation that she was out of the country and has recently returned, and in order to ensure that applicant is provided with due process, we will return this matter to the trial level for further proceedings to develop the record. Upon return of this matter to the trial level, we recommend the WCJ treat applicant's Petition as a petition to set aside, including the setting of a hearing so that applicant can provide evidence in support of her arguments and create a record upon which a decision can be made by the WCJ.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
No evidence was admitted to the record to support applicant's claim that she was out of the country and recently returned
Favours Defendant prevailed
Without evidence, the Board could not grant reconsideration and had to dismiss the petition and return the matter for further proceedings
From the decision · page 5Here, there is currently no evidence admitted into the record regarding applicant's allegation that she was out of the country and has recently returned, and in order to ensure that applicant is provided with due process, we will return this matter to the trial level for further proceedings to develop the record. Upon return of this matter to the trial level, we recommend the WCJ treat applicant's Petition as a petition to set aside, including the setting of a hearing so that applicant can provide evidence in support of her arguments and create a record upon which a decision can be made by the WCJ.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5803
The appeals board has continuing jurisdiction and may rescind, alter, or amend any order for good cause (Labor Code section 5803)
The Board considered this statute in deciding to dismiss the petition and return the matter for further proceedings
From the decision · page 3Subject to the limitations of Labor Code section 5804, "The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of [Division 4]... At any time, upon notice and after the opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor."1 (Lab. Code, § 5803.)
WCAB Rule 10550
WCAB Rule 10550 authorizes dismissal of inactive cases after notice and opportunity to be heard, but dismissal is discretionary, not mandatory
The Board applied this rule in evaluating the dismissal and the petition for reconsideration
WCAB Rule 10832
WCAB Rule 10832 governs issuance of Notice of Intention and procedures for objections and orders thereafter
The Board applied this rule in considering the Notice of Intention to Dismiss and the lack of objection
From the decision · page 3WCAB Rule 10832 states: (a) The Workers' Compensation Appeals Board may issue a notice of intention (NIT) for any proper purpose, including but not limited to: (1) Allowing, disallowing or dismissing a lien; (2) Granting, denying or dismissing a petition; (3) Sanctioning a party; (4) Submitting the matter on the record; or (5) Dismissing an application. (b) A Notice of Intention may be served by designated service in accordance with rule 10629. (c) If an objection is filed within the time provided, the Workers' Compensation Appeals Board, in its discretion may:
What proof carried it
The evidence the panel weighed, by kind.
Applicant's attorney stated applicant was out of the country and recently returned, but no evidence was admitted to support this claim
From the decision · page 5Here, there is currently no evidence admitted into the record regarding applicant's allegation that she was out of the country and has recently returned, and in order to ensure that applicant is provided with due process, we will return this matter to the trial level for further proceedings to develop the record. Upon return of this matter to the trial level, we recommend the WCJ treat applicant's Petition as a petition to set aside, including the setting of a hearing so that applicant can provide evidence in support of her arguments and create a record upon which a decision can be made by the WCJ.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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