Fox v. Workers' Comp. Appeals Bd

In Fox v. Workers' Comp. Appeals Bd. (1992) 4 Cal. App. 4th 1196, a physician lien claimant failed to appear at the hearing set by the WCJ to determine the amount of his allowable lien, due to illness and the departure of the employee who was to represent him during the proceeding. (Fox v. Workers' Comp. Appeals Bd., supra, 4 Cal. App. 4th at pp. 1199-1200.) More than six months after the WCJ issued its order disallowing the lien, the physician filed a petition in the workers' compensation proceeding to set aside the order under Code of Civil Procedure section 473, including a declaration setting forth his reasons for failing to appear. (Fox v. Workers' Comp. Appeals Bd., supra, at p. 1201.) The WCJ found the arguments concerning the lien claimant's health condition "'irrelevant,'" and the Board refused reconsideration. (Fox v. Workers' Comp. Appeals Bd., supra, at p. 1202.) The Court of Appeal reversed and remanded the matter to the Board for further proceedings, concluding that the WCJ had failed to properly address the issue presented by the Code of Civil Procedure section 473 motion: "The real issue before the WCJ ... was whether Dr. Fox had presented grounds for relief from the dismissal for his failure to appear. Dr. Fox relied on his illness and the departure of a key employee, simultaneously, as the ground for his inaction on the date of the hearing on his lien. At no point did the WCJ specifically question the credibility of Dr. Fox. In his report and recommendation on Dr. Fox's petition for reconsideration by the Board, the WCJ stated that Dr. Fox's reasons for not appearing at the hearing ... were 'irrelevant.' If it is true that the facts upon which Dr. Fox relied to establish 'mistake, inadvertence, surprise, or excusable neglect' were considered irrelevant by the WCJ, the WCJ misunderstood what he was supposed to decide." (Fox v. Workers' Comp. Appeals Bd., supra, at p. 1206.)