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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. ADJ8639697, ADJ8585911
Regular
May 17, 2018

BRIGIDA PEREZ vs. LOVIN OVEN, THE TRAVELERS INSURANCE COMPANY

The Workers' Compensation Appeals Board (WCAB) granted reconsideration of a dismissal order for a lien claimant's failure to appear at a lien conference. The lien claimant sought relief under Code of Civil Procedure section 473, claiming excusable neglect due to a mis-calendared hearing date. The WCAB found the lien claimant's petition lacked sufficient detail to establish excusable mistake. The WCAB will affirm the dismissal unless the lien claimant provides a sworn declaration from a person with personal knowledge detailing the facts of the excusable mistake.

Lien claimantPetition for ReconsiderationExcusable neglectCode of Civil Procedure section 473Mis-calendaredSworn declarationPersonal knowledgeWCJDismissal with prejudiceFox v. Workers' Comp. Appeals Bd.
References
6
Case No. ADJ1622633
Regular
Apr 04, 2011

SALVADOR CONTRERAS vs. M&C FARM LABOR, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, INTERCARE PASADENA, PAULA INSURANCE

This case involved an applicant seeking to reopen his workers' compensation claim due to new and further disability. The WCAB denied reconsideration, upholding the WCJ's decision that the applicant's petition to reopen was barred by the five-year statute of limitations. This was because the petition was improperly filed in the wrong district office, violating WCAB rules requiring filing in the office with venue. Despite the applicant's pro se status and his argument for liberal construction, the majority found no alleged excusable neglect and thus upheld the dismissal. A dissenting opinion argued that the applicant's actions demonstrated mistake and excusable neglect, and that the WCAB should have excused the procedural error to allow a hearing on the merits.

Petition to ReopenStatute of LimitationsLabor Code Section 5410Labor Code Section 5804WCAB Rule 10390WCAB Rule 10450Proper VenueDistrict Office FilingMistakeInadvertence
References
6
Case No. ADJ8 453844
Regular
Jun 15, 2016

ISOBETH CABRERA vs. LABOR READY, ESIS

This case involves a lien claimant seeking reconsideration of a dismissed lien. The lien was dismissed because the claimant failed to appear at a lien conference and subsequently file a properly verified objection detailing the excusable neglect. While the Board granted reconsideration, it intends to affirm the dismissal unless the claimant provides a sworn affidavit from a person with personal knowledge explaining the circumstances of the failure to appear. This affidavit must sufficiently detail the mistake, inadvertence, surprise, or excusable neglect.

Workers' Compensation Appeals BoardLien claimantPetition for ReconsiderationOrder Dismissing LienNotice of Intention to Dismiss Lienverified objectionCode of Civil Procedure section 473Fox v. Workers' Comp. Appeals Bd.Beverly Hills Multispecialty Group Inc. v. Workers' Comp. Appeals Bd.failure to appear
References
6
Case No. ADJ7764690
Regular
May 03, 2017

Melissa Tucker vs. Obagi Skin Health Institute, Hartford Sacramento

The Workers' Compensation Appeals Board (WCAB) granted the lien claimant's petition for reconsideration regarding the dismissal of its lien claim. The dismissal was based on the lien representative's failure to appear at a lien conference. The WCAB will affirm the dismissal unless the lien claimant provides a sworn declaration from a person with personal knowledge explaining the excusable neglect, such as a computer error, that caused the representative's absence. This affidavit must demonstrate facts sufficient to establish mistake, inadvertence, surprise, or excusable neglect under Code of Civil Procedure section 473.

Lien claimantReconsiderationExcusable neglectCode of Civil Procedure section 473Fox v. Workers' Comp. Appeals Bd.Sworn declarationPersonal knowledgeComputer errorWCJ dismissalNotice of Intention
References
11
Case No. 2017 NY Slip Op 07357
Regular Panel Decision
Oct 19, 2017

Matter of Kathleen NN. (Dennis NN.)

This case involves three neglect proceedings initiated by the Sullivan County Department of Family Services and the Attorney for the Child against Dennis NN. (father), Justin EE. (mother's boyfriend), and Angelica FF. (mother) concerning Kathleen NN., an alleged neglected child. The Family Court of Sullivan County initially dismissed all three petitions. The Appellate Division, Third Department, reversed the dismissal concerning Dennis NN., finding that his actions of dropping the child during an altercation placed her in imminent danger of harm, thus granting the neglect petition against him and remitting the matter for a dispositional hearing. However, the Appellate Division affirmed the dismissals against Justin EE. and Angelica FF., concluding that there was insufficient evidence to prove neglect or that Justin EE. was a legal custodian at the time of the incident, and that the mother's conduct did not demonstrate imminent danger to the child.

Child NeglectFamily Court ActImminent DangerParental ResponsibilitySafety Plan Non-ComplianceAppellate DivisionChild CustodyPreponderance of EvidencePhysical AltercationChild Protective Report
References
17
Case No. MISSING
Regular Panel Decision

In re Lindsay W.

The Commissioner of Social Services of the City of New York appealed an order from the Family Court, Queens County, which effectively dismissed a proceeding to continue the placement of a neglected child, Lindsay W. The Family Court had denied the Commissioner's request for a temporary extension of placement, citing the process server's error in service as an invalid excuse. The appellate court ruled that the Family Court abused its discretion by not granting the temporary extension, finding that the Commissioner had shown 'good cause' through good-faith attempts to notify the respondent mother and an excusable process server misunderstanding. The case was reversed and remitted to the Family Court to determine if the Commissioner's initial petition for extension, filed 11 days late, was also for 'good cause', which would then lead to a merits hearing on the extension of placement.

Child NeglectFamily Court ActPlacement ExtensionService of ProcessAbuse of DiscretionGood CauseParental RightsAppellate ReviewRemittiturTimely Filing
References
6
Case No. 2015 NY Slip Op 08350
Regular Panel Decision
Nov 17, 2015

Matter of Edubilio Andre R. (Andre R.)

The Appellate Division, First Department, affirmed the Family Court's orders of fact-finding and disposition, which determined that the respondent father, Andre R., permanently neglected his children. The Family Court had properly excused the petitioner agency, Cardinal McCloskey Community Services, from its duty to exercise diligent efforts for reunification. This decision was based on the father's felony conviction for sexual abuse, prior findings of sexual abuse against his daughter and medical neglect of his son, and expert testimony indicating that reunification would be traumatic for the children. The court noted the father's failure to participate in services or sexual offender programs while incarcerated. Additionally, appeals from the dispositional portions of the orders were dismissed due to the father's default at the hearings.

Child NeglectPermanent NeglectParental Rights TerminationSexual AbuseMedical NeglectDiligent Efforts ExcuseFamily Court AppealAppellate Division First DepartmentBest Interests of the ChildDefault at Dispositional Hearing
References
3
Case No. ADJ3362610 (AHM 0122924)
Regular
Jan 09, 2012

JOSE COLLASO, JOSE COLLAZO vs. PACIFIC FRESH FOOD CO., PREMIER STAFFING SOLUTIONS, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) dismissed the applicant's petition for reconsideration because it was filed 146 days after the original dismissal order, far exceeding the 25-day jurisdictional deadline. The Board noted that untimely petitions cannot be excused by mistake or excusable neglect, even if the applicant experienced homelessness. However, the WCAB will remand the case to the WCJ to treat the petition as a request to reopen the dismissal for good cause and schedule a hearing on that specific issue.

Petition for reconsiderationDismissal for lack of prosecutionPetition to reopenGood causeJurisdictional time limitsFinal orderUntimely petitionContinuing jurisdictionWorkers' Compensation Appeals BoardAdministrative law judge
References
16
Case No. ADJ3992748 (SDO 0319279)
Regular
Nov 01, 2019

MARTHA GONZALEZ vs. ANGELICA CORPORATION, CALIFORNIA, INSURANCE GUARANTEE ASSOCIATION, FOR LUMBERMAN’S MUTUAL CASUALTY INSURANCE, IN LIQUIDATION, BY ITS SERVICING FACILITY, TRISTAR RISK MANAGEMENT, ZURICH AMERICAN INSURANCE COMPANY, GALLAGHER BASSETT SERVICES

Defendant California Insurance Guarantee Association sought reconsideration of an order dismissing it from a workers' compensation case, arguing excusable neglect and mutual mistake regarding reimbursement amounts. The Appeals Board dismissed the petition as premature, as no evidence was taken to support the defendant's claims of a mistake in the stipulation. The matter is returned to the trial level to allow the WCJ to hold a hearing on the defendant's petition to set aside the order. This ensures due process and a proper evidentiary record before any final determination.

California Insurance Guarantee AssociationLumberman's Mutual Casualty InsuranceTristar Risk ManagementZurich American Insurance CompanyGallagher Bassett ServicesPetition for ReconsiderationExcusable NeglectMutual Mistake of FactStipulationsOrder Dismissing Defendant
References
11
Case No. MISSING
Regular Panel Decision
Jul 05, 2006

In re Ian H.

This case involves an appeal from a Family Court order adjudicating a respondent's children neglected. The respondent, a substitute day-care worker, was accused of sexually abusing female children attending a day-care center operated by his wife. Petitioner initiated a neglect proceeding, alleging derivative neglect of the respondent's twin sons based on his inappropriate conduct with other children. The Family Court found that the respondent neglected three children by sexually abusing them, demonstrating a fundamental defect in parenting that derivatively neglected his own children. The Appellate Division affirmed this finding, concluding that out-of-court statements of the abused children were properly admitted and sufficiently corroborated, and the Family Court appropriately exercised its discretion in not compelling a child's testimony.

Child NeglectDerivative NeglectSexual AbuseFamily Court Act Article 10Out-of-court StatementsCorroborationHearsay ExceptionJudicial DiscretionParental JudgmentChild Testimony
References
13
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