From the Desk Of:
Bruce A. Little
A word of advice: Just because the applicant’s counsel objects to a letter sent to the applicant pursuant to CCR section 10550 advising of your intent on filing a Petition for Dismissal due to lack of prosecution, it doesn’t mean that a judge will agree with their objection.
I recently had a case in which the applicant sustained an accepted injury on 3/11/20 to the right ankle. She received treatment through Concentra, with the last report being a physical therapy report of 4/29/20 stating she no longer had any pain or soreness. She did not attend an MMI exam. The applicant was laid off with 9 others due to a work slowdown due to COVID. This resulted in her filing a 132a claim and obtaining counsel. The applicant eventually selected a physician in the MPN in September 2020, but no exam was ever scheduled. It was agreed that after several inquiries to the applicant’s counsel as to whether an exam was being scheduled, that we would take no further action, with the intent on seeking dismissal of the applicant’s case one year after the application was filed. Applicant and AA were provided with written notice of our intent on filing a Petition for Dismissal on 5/4/21. AA timely objected to this on 5/8/21, stating that the applicant was “a bit freaked out” about COVID and missed some medical appointments. AA stated they had advised the applicant of the urgency to keep her appointments. We waited to see if AA scheduled applicant for an exam with the PTP, and when we confirmed an exam had still not been set by 6/14/21, we filed our Petition for Dismissal of an Inactive Case on 6/18/21, noting in the petition that AA had still not scheduled applicant for an exam with the PTP. On 6/18/21, we received a Notice of Intention to Dismiss Case from the WCJ, stating that both the case in chief and 132a claim would be dismissed without prejudice unless good cause to the contrary was shown in writing within 10 days. The WCJ specifically said that “good cause” would not be found by mere objection, but rather by the specific response to the basis for dismissal together with copies of any additional documentary evidence to be submitted, and an offer of proof as to any oral testimony to be presented at a hearing on the issue. There was no response to this from AA and on 7/16/21, the WCJ issued her formal Order Dismissing Case. I suspect AA had lost contact with the applicant and was making an objection to my notice to try and stall things out. It goes to show, you don’t have to drop your argument just because AA says the applicant is ready and willing to move their case forward.