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Dalila Tututi filed two Applications for Adjudication of Claim against Big Merryluck GG. On October 4, 2019, PCT Medical Services Gilbert filed a lien for medical treatment expenses incurred by or on behalf of applicant, pursuant to Labor Code section 4600.  On December 9, 2019, the parties requested a lien trial on unresolved liens, including that of PCT Medical Services.

On January 7, 2020, the parties proceeded to lien trial, at which time Ms. Airhana Hernandez ostensibly appeared on behalf of PCT Medical Services. However, Ms. Hernandez was unable to produce a Notice of Representation.

The WCJ provided lien claimant’s representative additional time in which to produce the required notice, but the lien representative was unable to provide the notice by the end of the morning’s trial setting. The WCJ then issued a Notice of Intention to Dismiss Lien Claim or Lien Balance because “no compliant Notice of Representation per Title 8 CCR §10868, §10751 was filed at or before time of hearing.”

Lien claimant filed an objection to the Notice of Intention to Dismiss requesting discretionary relief pursuant to Code of Civ. Proc., § 473(b) for mistake, inadvertence, surprise or excusable neglect. However the WCJ issued an Order Dismissing Lien Claim or Lien Balance, stating “Even though a timely objection dated 1-17-2020 was filed on 1-17-2020, this objection does not show good cause for non-appearance by lien claimant or their representative at the Lien Trial on 1-7-20.”

The Lien Claimant’s Petition for Reconsideration of the Dismissal was granted, and the Order Dismissing was reversed in the panel decision of Tututi v Big Merryluck GG -ADJ11296374; -ADJ11296239 (August 2023).

Non-attorney representatives who appear on behalf of parties in workers’ compensation proceedings are required to file a valid notice of representation as required by WCAB Rule 10751, and WCAB Rule 10868, which specifies the requirements pertaining to a Notice of Representation involving lien claimants.

Violation of the appropriate rules may give rise to monetary sanctions, attorney’s fees and costs under Labor Code section 5813 and rule 10421.

Here, there is no dispute that Ms. Hernandez was unable to provide a valid Notice of Representation at the time of lien trial. Following the issuance of the court’s Notice of Intention, and review of lien claimant’s objection, the WCJ dismissed the lien with prejudice.”

Code of Civ. Proc., § 473(b) permits the trial court to relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. A motion seeking relief under section 473 is addressed to the sound discretion of the trial court; its decision will not be overturned on appeal absent a clear showing of abuse of discretion. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 [243 Cal. Rptr. 902]; Elston v. City of Turlock (1985) 38 Cal. 3d 227, 233 [211 Cal. Rptr. 416].)

The WCAB panel noted that discretion, “however is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.”

The court of appeal confirmed that the section 473(b) may afford relief to other parties to workers’ compensation proceedings in Fox v. Workers’ Comp. Appeals Bd. (1992) 4 Cal.App.4th 1196 [57 Cal.Comp.Cases 149] (Fox).

“We observe that while WCAB Rule 10751 requires the non-attorney representative making an appearance to provide a valid notice of representation, it does not specify a remedy for failure of compliance, and it does not mandate dismissal of the underlying lien claim.”

“We also observe that following notice of the failure to provide the required notice of representation on the day of trial, lien claimant attempted to remedy the deficiency by filing a Notice of Representation in EAMS later that same day.”

“In summary, we are persuaded that lien claimant has taken reasonable action to remedy the procedural deficiencies in its trial appearance, and that lien claimant promptly sought relief from its dismissal for failure to comply with our Rules, and that the public policy in favor of disposition on the merits warrants the rescission of the dismissal of the lien claim.”