Skip to content

Reopening Claims Dismissed for Lack of Prosecution

California Code of Regulations § 10550 outlines the procedure for dismissing a case for lack of prosecution, often referred to as a dismissal for inactivity. In simple terms, if a case is not activated for hearing within a year from the filing of the application for adjudication or an order taking it off the calendar, the case may be dismissed.

The appeals board may initiate this procedure on its own, but more commonly the employer would file a petition if there has been no activity on the case for a year. Before filing a petition for dismissal, the defendant must send a letter to the applicant, and, if there is one, to the applicant's representative. The letter must state the defendant's intent to dismiss the case after 30 days unless the applicant's written objection cites a good reason to keep the case active. The petition must be filed with the 30-day intention letter and any replies.

After a petition is filed, dismissal of a claim for lack of prosecution under CCR 10550 is discretionary with the appeals board. In determining whether to dismiss, the WCJ may balance the equities of the respective parties. Judges, however, generally are loath to dismiss a claim unless a defendant establishes that the applicant has abandoned the claim or otherwise establishes good cause for the dismissal. A case may be dismissed after issuance of a 10-day notice of intention to dismiss and an opportunity to be heard, but not by an order with a clause rendering it null and void if an objection showing good cause is filed (that is, a "self-destruct order").

Even after a claim has been dismissed for lack of prosecution pursuant to CCR 10550, an applicant has a right to reopen it. The Court of Appeal has explained, "A dismissal without prejudice has the effect of a final judgment in favor of the defendant insofar as it terminates the proceeding and concludes the right of the parties in the particular action. [Citation.] Such a dismissal filed within the time of the applicable statute of limitations does not bar a subsequent action on the same cause filed within the applicable statutory period." It added, "Such a dismissal leaves the matter as if no application had been filed." (Nolan v. WCAB (1977) 42 CCC 401.)

Because a dismissal without prejudice leaves the matter as if no application had been filed, in many cases the appeals board will allow an applicant to reopen a dismissed claim as long as the petition to reopen was filed within five years of the date of injury. That's because when benefits have been furnished voluntarily, LC 5410 allows a claim to be reopened within five years of the date of injury on the grounds of new and further disability. If a dismissed claim cannot be reopened on those grounds under LC 5814, an applicant might be able to reopen it for good cause under LC 5803 and LC 5804.



The appeals board recently demonstrated its willingness to reopen a claim dismissed for lack of prosecution in Zavala v. Red Robin Burger & Spirits Emporiums, 2023 Cal. Wrk. Comp. P.D. LEXIS 243. In that case, a claim was dismissed Nov. 23, 2020, for lack of prosecution without prejudice based on three failures to appear at medical appointments and no response from the applicant's attorney. Six months after the dismissal, the applicant, acting in pro per, filed a petition to reopen. The appeals board explained that the law, whenever possible, favors a hearing on the merits. It found good cause to reinstate the claim because the dismissal came during the middle of the COVID-19 pandemic, which culminated in a perfect storm of ruin for the applicant. It also found that the applicant's previous attorneys failed to respond to the notice of intention to dismiss and failed to represent her interests, which caused her case to be dismissed.

Accordingly, even though a dismissal for lack of prosecution is an option, defendants must decide whether the cost and effort to do so is worth it. Even if a defendant is able to persuade a WCJ to issue the initial order of dismissal, generally it's not difficult for an applicant to reopen a dismissed claim. Nevertheless, many applicants do not seek to reopen them. Furthermore, if a claim is dismissed more than five years after the date of injury, the appeals board may be without jurisdiction to reopen it. So, whether to seek dismissal of a claim depends largely on the facts and circumstances of each case.

For further discussion of this topic, see Sullivan on Comp Section 15.82 Dismissal of Claim.

Get blog post notifications

Recent Posts

Posts by Topic

See all