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Workers' Compensation

California: Setting Aside the Dismissal of a Claim

A WCAB panel set aside an order dismissing an applicant’s death claim for inactivity. This decision is interesting for its discussion of when the Code of Civil Procedure applies, and the interplay of WCAB rules and the Code of Civil Procedure, among other things. Read our headnote here.

Fredy Lara Portillo (Dec’d), Lorena Lara, Applicant v. Norman Etchison, Zenith Insurance Company, Defendants

W.C.A.B. No. ADJ12602375—WCAB Panel: Commissioners Snellings, Dodd, Deputy Commissioner Schmitz

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed May 23, 2022

Publication Status:    CAUTION: This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition:  Applicant’s Petition for Reconsideration is granted, and the March 2, 2022 Findings of Fact & Orders are rescinded and substituted with new Findings of Fact and Orders.

Dismissal—Inactive Cases—WCAB, granting reconsideration, reversed WCJ’s finding and concluded that applicant met burden of demonstrating that WCJ’s 3/18/2021 order dismissing applicant’s death claim for inactivity resulted from her attorney’s mistake, inadvertence, surprise, or neglect, and that order of dismissal must be set aside per applicant’s request, when WCAB analyzed applicant’s request for relief using procedures substantially similar to Code of Civil Procedure § 473, accounting for both purposes and limitations of administrative dismissal for inactivity, as well as public policy considerations present in workers’ compensation proceedings generally, and WCAB found that given procedural flexibility afforded workers’ compensation proceedings and pursuant to holding in Fox v. W.C.A.B. (1992) 4 Cal. App. 4th 1196, 6 Cal. Rptr. 2d 252, 57 Cal. Comp. Cases 149, requiring substantially similar procedure to that of Code of Civil Procedure § 473, pleadings submitted by applicant’s counsel specifically admitting mistake and inadvertence in failing to object to WCJ’s Notice of Intention to dismiss were sufficient to warrant setting aside dismissal order without sworn declaration from applicant’s attorney admitting to mistake and inadvertence, that law favors decisions based on merits of claim rather than on procedural bases, and that defendant in this matter suffered no prejudice by recission of dismissal order in favor of determination on merits of applicant’s claim. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 23.11[5][c], 23.14[2][j]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.38; Ch. 16, § 16.07[5].]

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PDF below.

LARA PORTILLO_FREDY.pdf