ADJ11381920 · June 13, 2025

The WCAB found that the issue of accrued temporary disability benefits and attorney fees was not identified for trial, and adjudicating it without notice would violate due process. Therefore, the issue was deferred to avoid due process violation.

From the decision · page 5Here, it appears that defendant reasonably relied on the pre-trial conference statement and the discussions at the time of trial to determine what issues it would need to defend at trial. Consequently, we cannot interpose our own findings on the specific issue of accrued and owing temporary disability, which was not identified as an issue pending at the time of the pre-trial conference statement or as an issue for adjudication at the time of trial. Under these circumstances, we cannot "do justice" as applicant argues, by interposing our own findings on the issue of accrued and unpaid temporary disability without violating the parties' rights to due process. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584] citing Rucker, supra, 82 Cal.App.4th at pp. 157-158).

The issue of accrued but unpaid temporary disability was not identified as an issue for trial or pre-trial conference statement.

Favours Applicant prevailed

This lack of identification meant defendant did not have notice or opportunity to defend, leading to a due process violation if adjudicated.

From the decision · page 5Here, it appears that defendant reasonably relied on the pre-trial conference statement and the discussions at the time of trial to determine what issues it would need to defend at trial. Consequently, we cannot interpose our own findings on the specific issue of accrued and owing temporary disability, which was not identified as an issue pending at the time of the pre-trial conference statement or as an issue for adjudication at the time of trial. Under these circumstances, we cannot "do justice" as applicant argues, by interposing our own findings on the issue of accrued and unpaid temporary disability without violating the parties' rights to due process. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584] citing Rucker, supra, 82 Cal.App.4th at pp. 157-158).

Dr. Siebold's AME report identified multiple periods of potential temporary total disability but was found not substantial evidence and not dispositive on any medical-legal issue by the WCJ.

The WCJ found Dr. Siebold's AME report not substantial evidence and deferred liability for the report's cost.

Labor Code section 5909

Labor Code section 5909 requires the Appeals Board to act on a petition for reconsideration within 60 days of case transmission and mandates notice to parties of transmission.

Applied to determine the timing and notice requirements for petition for reconsideration.

From the decision · page 2Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

Labor Code section 4062.3(h)

Labor Code section 4062.3(h) imposes liability for costs incurred due to prohibited communication, including medical evaluation costs and attorney fees.

Applied to the issue of medical-legal report cost liability.

From the decision · page 6The party making the communication prohibited by this section shall be subject to being charged with contempt before the appeals board and shall be liable for the costs incurred by the aggrieved party as a result of the prohibited communication, including the cost of the medical evaluation, additional discovery costs, and attorney's fees for related discovery. (Cal Lab Code § 4062.3(h).) Here, the court found the report is not substantial medical evidence and not dispositive on any medical legal issue. Therefore, Defendant is not liable for the cost of the report. Defendant does not represent Dr. Siebold and it is now up to Dr. Siebold to determine if he wants to proceed against the Applicant's Attorney.

Labor Code section 5701

Labor Code section 5701 authorizes the WCJ to inquire into facts and issue awards warranted to determine parties' rights.

Cited by applicant to argue for adjudication of accrued but unpaid benefits; noted by WCAB in due process context.

From the decision · page 5that where an issue is logically encompassed within a broader issue (such as PD/TD), the judge may adjudicate it to do justice." (Answer, p. 2.) "Even if TD was not explicitly mentioned, Labor Code § 5701 authorizes the WCJ to inquire into the facts to determine the rights of the parties and issue any award warranted." (Ibid.)2 However, the WCJ did not order further development of the record on the temporary disability issue. More importantly, all parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) 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. (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 issue of accrued but unpaid temporary disability was not identified as an issue for trial, and defendant relied on pre-trial statements and trial discussions to determine issues to defend, supporting a due process violation claim.

From the decision · page 5Here, it appears that defendant reasonably relied on the pre-trial conference statement and the discussions at the time of trial to determine what issues it would need to defend at trial. Consequently, we cannot interpose our own findings on the specific issue of accrued and owing temporary disability, which was not identified as an issue pending at the time of the pre-trial conference statement or as an issue for adjudication at the time of trial. Under these circumstances, we cannot "do justice" as applicant argues, by interposing our own findings on the issue of accrued and unpaid temporary disability without violating the parties' rights to due process. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584] citing Rucker, supra, 82 Cal.App.4th at pp. 157-158).