Resolution Option: Dismissal for Lack of Prosecution
A sometimes overlooked avenue for finalizing a claim that has come to a standstill for one reason or another, is a dismissal for lack of prosecution. An Application for Adjudication of Claim filed without an accompanying Declaration of Readiness to Appear (DOR) or an Order Taking Off Calendar (OTOC), places the case in inactive status. After one (1) year of inactivity after either of those events, Title 8, California Code of Regulations (CCR) 10582 sets forth the procedure for obtaining an Order of Dismissal.
The first step is to send the injured worker and attorney (if applicable) a letter advising of your intention to file a petition for dismissal in thirty (30) days of the letter’s date absent a written response which provides a good reason why the case shouldn’t be dismissed. The letter (and any response) is/are attached to the Petition to Dismiss which sets forth the facts supporting the request. All parties and lien claimants are served with a copy of the Petition. If a Workers’ Compensation Judge (WCJ) finds merit in the Petition, he/she issues a 10 day Notice of Intention to Dismiss (the Rule specifically prohibits the WCJ from issuing a self-destruct Order of Dismissal). If there is no response to the Petition, the WCJ issues an Order of Dismissal for Lack of Prosecution. Since the Order affects the injured worker’s substantive rights, it is subject to a Petition for Reconsideration. Once the time for reconsideration has passed, the Order is final and the case-in-chief (as well as any lien claims) is/are dismissed.
It’s evident by the time lines in the various steps that the Rule is designed to provide an injured worker with ample opportunity to be heard. If the inured worker fails to respond to the initial notice of intent letter, it’s unlikely there will be a response to the Notice of Intention to Dismiss or a Petition for Reconsideration filed. Therefore, the result is a foregone conclusion and it’s only a matter of waiting for the Order to become final. At the very least, the procedure may get an otherwise inactive case moving again or provide an opportunity to settle without additional litigation.