What the panel ordered
Petition for Reconsideration granted; WCJ's Minute Order dismissing Petition for Sanctions and Costs rescinded; matter returned to trial level for further proceedings; WCJ Szelenyi recused and case reassigned.
Petition for Reconsideration of the WCJ's Minute Order dismissing cost petitioner's Petition for Sanctions and Costs after failure to appear at trial.
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 failed to issue a required Notice of Intent (NIT) to dismiss the petition and to sanction the representative, violating due process. The WCAB granted reconsideration, rescinded the dismissal, and returned the matter for further proceedings with reassignment of the WCJ.
From the decision · page 4As relevant in this case, the principles of due process require the issuance of a notice of intent (NIT) to dismiss a petition as a condition precedent to dismissal, thereby affording the interested party or parties an opportunity to be heard. (Fortich v. Workers' Comp. Appeals Bd. (Fortich) (1991) 233 Cal.App.3d 1449, 1452-1453 [56 Cal.Comp.Cases 537].) The Appeals Board has adopted various rules governing notices of intent that should be followed by WCJs. First, WCAB Rule 10755 provides:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
WCJ dismissed the Petition for Sanctions and Costs without issuing a Notice of Intent to dismiss, violating due process.
Favours Applicant prevailed
Without the NIT, the petitioner was denied the opportunity to be heard on the merits, requiring rescission and remand.
Favours Applicant prevailed
Without proper notice, a sanction hearing could not proceed, requiring remand and reassignment.
WCJ Szelenyi agreed to recuse herself and the case was reassigned to a new WCJ upon remand.
Favours Applicant prevailed
Recusal and reassignment serve the interests of justice and ensure fair proceedings on remand.
From the decision · page 6Although the WCAB Electronic Adjudication Management System (EAMS) does not contain any evidence that cost petitioner moved to disqualify WCJ Szelenyi from the proceeding, WCJ Szelenyi has alternatively offered to recuse herself from cost petitioner's case. (Report, p. 5.) We emphasize that a WCJ should not recuse themself lightly. (Robbins v. Sharp Healthcare (2006) 71 Cal.Comp.Cases 1291, 1311 (Robbins).) In Robbins, the Appeals Board explained that allocation of our scarce judicial resources and orderly administration of our system depend upon the cooperation of the WCJ and all parties, and that all litigants and WCJs have a responsibility to refrain from interactions sufficient to establish grounds for disqualification or recusal. (Id. at p. 1311.) However, under the specific circumstances of this case, where WCJ Szelenyi does not object to, and indeed, agrees with, cost petitioner's request for reassignment, we believe it would serve the interests of justice to assign a new WCJ to cost petitioner's case upon return to the trial level. (Cal. Code Regs., tit. 8, § 9721.12(a)(10).)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449
Due process requires issuance of a Notice of Intent (NIT) to dismiss a petition or to sanction a party, affording opportunity to be heard.
The WCJ failed to issue an NIT before dismissing the petition and before sanctioning the representative, violating due process rights.
From the decision · page 4As relevant in this case, the principles of due process require the issuance of a notice of intent (NIT) to dismiss a petition as a condition precedent to dismissal, thereby affording the interested party or parties an opportunity to be heard. (Fortich v. Workers' Comp. Appeals Bd. (Fortich) (1991) 233 Cal.App.3d 1449, 1452-1453 [56 Cal.Comp.Cases 537].) The Appeals Board has adopted various rules governing notices of intent that should be followed by WCJs. First, WCAB Rule 10755 provides:
What proof carried it
The evidence the panel weighed, by kind.
Failure to issue a Notice of Intent to dismiss the petition and to sanction the representative, denying due process.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
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