What the panel ordered
The WCAB granted the Petition for Reconsideration, rescinded the WCJ's June 17, 2021 Order Dismissing Case, and returned the matter to the WCJ for further proceedings consistent with the decision.
Applicant sought reconsideration of the WCJ's June 17, 2021 Order Dismissing Case, contending it violated due process rights. The WCJ had dismissed the case due to applicant's failure to prosecute for over one year. The WCAB granted reconsideration, rescinded the dismissal order, and returned the matter to the WCJ for further proceedings.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCJ's dismissal order lacked an evidentiary record and hearing, violating applicant's due process rights, requiring rescission and remand for further proceedings.
From the decision · page 2DISCUSSION The statutory and regulatory duties of a WCJ include the issuance of a decision that complies with Labor Code section 5313.1 An adequate and complete record is necessary to understand the basis for the WCJ's decision and the WCJ shall "... make and file findings upon all facts involved in the controversy[.]" (Lab. Code, § 5313; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 [2001 Cal. Wrk. Comp. LEXIS 4947] (Appeals Bd. en banc)2
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
No evidence or testimony was admitted at the May 7, 2021 hearing, so no evidentiary record supported dismissal.
Favours Applicant prevailed
Without an evidentiary record, the WCJ's dismissal order could not be properly evaluated, requiring rescission.
From the decision · page 3Here, no documents or testimony were admitted into evidence at the May 7, 2021 hearing. In the absence of an evidentiary record, we are unable to evaluate the basis for the WCJ's Order. Therefore, we must return this matter to the trial level for further proceedings.
The lack of a hearing prevented parties from exercising their rights to call and cross-examine witnesses and introduce evidence.
Favours Applicant prevailed
This deprivation violated due process, necessitating rescission and remand.
From the decision · page 4[The] commission,... must find facts and declare and enforce rights and liabilities, -- in short, it acts as a court, and it must observe the mandate of the constitution of the United States that this cannot be done except after due process of law. (Id. at 577.) Due process guarantees all parties the right to notice of hearing and a fair hearing. (Rucker, supra, at 157-158.) A fair hearing includes, but is not limited to the opportunity to call and cross- examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker, supra, at 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].) The lack of a hearing prevented either party from exercising their right to call witnesses, cross-examine witnesses and/or introduce evidence in support of their positions or in rebuttal of the opposing parties' evidence.
Service of the Order of Dismissal was defective under WCAB Rule 10628(a).
Favours Applicant prevailed
Defective service further supported rescission of the dismissal order.
From the decision · page 4"The improper restriction on the right to present evidence in rebuttal is a deprivation of the constitutional guaranty of due process of law." (Rucker, supra, at 157 citing Pence v. Industrial Acc. Com. (1965) 63 Cal.2d 48, 50-51.) Therefore, the WCJ denied both parties their fundamental right to due process with respect to the NIT, and we must rescind the Order and return the matter to the WCJ on due process grounds as well. Finally, we note that the Order of Dismissal included an order of delegated service. WCAB Rule 10628(a) states that: The Workers' Compensation Appeals Board shall serve the injured employee or any dependent(s) of a deceased employee, whether or not the employee or dependent is represented, and all parties of record with any final order, decision or award issued by it on a disputed issue after submission. The Workers' Compensation Appeals Board shall not designate a party, or their attorney or agent of record, to serve any final order, decision or award relating to a submitted issue.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5313
Labor Code section 5313 requires WCJ to make and file findings upon all facts involved in the controversy.
An adequate and complete record is necessary to understand the basis for the WCJ's decision.
From the decision · page 2DISCUSSION The statutory and regulatory duties of a WCJ include the issuance of a decision that complies with Labor Code section 5313.1 An adequate and complete record is necessary to understand the basis for the WCJ's decision and the WCJ shall "... make and file findings upon all facts involved in the controversy[.]" (Lab. Code, § 5313; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 [2001 Cal. Wrk. Comp. LEXIS 4947] (Appeals Bd. en banc)2
Cal. Code Regs., tit. 8, 10349
WCAB Rules allow issuance of Notice of Intention and require hearing if objection is filed.
If objection is filed, the Board may issue order consistent with notice or set matter for hearing.
From the decision · page 3The WCAB Rules provide in relevant part that "The Workers' Compensation Appeals Board may issue a notice of intention for any proper purpose...; [i]f an objection is filed within the time provided, the Workers' Compensation Appeals Board, in its discretion may... [i]ssue an order consistent with the notice of intention together with an opinion on decision; or... [s]et the matter for hearing." (Cal. Code Regs., tit. 8, § 10349.) Here, the issue in defendant's petition to dismiss the case was due to applicant's inactivity for longer than a year pursuant to WCAB Rule 10582. Defendant contends dismissal is proper since the matter had remained off calendar for over one year after the Application for Adjudication of Claim had been filed. However, once the parties appeared before the WCJ at the May 7, 2021, inactivity was no longer an issue. The WCJ then issued the NIT on May 12, 2021 without having held another hearing. The only plausible grounds for the WCJ to issue an NIT would be due to applicant's failure to appear at the May 7, 2021 hearing. Had the WCJ issued an NIT on those grounds, the aggrieved party could have objected and requested a hearing. If no party objected, then the Order would become final.
Rucker v. Workers' Comp. Appeals Bd.
Due process guarantees right to notice and fair hearing including opportunity to call and cross-examine witnesses and introduce evidence.
Lack of hearing deprived parties of constitutional due process rights.
From the decision · page 4[The] commission,... must find facts and declare and enforce rights and liabilities, -- in short, it acts as a court, and it must observe the mandate of the constitution of the United States that this cannot be done except after due process of law. (Id. at 577.) Due process guarantees all parties the right to notice of hearing and a fair hearing. (Rucker, supra, at 157-158.) A fair hearing includes, but is not limited to the opportunity to call and cross- examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker, supra, at 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].) The lack of a hearing prevented either party from exercising their right to call witnesses, cross-examine witnesses and/or introduce evidence in support of their positions or in rebuttal of the opposing parties' evidence.
What proof carried it
The evidence the panel weighed, by kind.
No evidence or testimony was admitted at the May 7, 2021 hearing, leaving no evidentiary record to support dismissal.
From the decision · page 3Here, no documents or testimony were admitted into evidence at the May 7, 2021 hearing. In the absence of an evidentiary record, we are unable to evaluate the basis for the WCJ's Order. Therefore, we must return this matter to the trial level for further proceedings.
Lack of hearing prevented parties from exercising rights to call and cross-examine witnesses and introduce evidence, violating due process.
From the decision · page 4[The] commission,... must find facts and declare and enforce rights and liabilities, -- in short, it acts as a court, and it must observe the mandate of the constitution of the United States that this cannot be done except after due process of law. (Id. at 577.) Due process guarantees all parties the right to notice of hearing and a fair hearing. (Rucker, supra, at 157-158.) A fair hearing includes, but is not limited to the opportunity to call and cross- examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker, supra, at 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].) The lack of a hearing prevented either party from exercising their right to call witnesses, cross-examine witnesses and/or introduce evidence in support of their positions or in rebuttal of the opposing parties' evidence.
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