ADJ14513544 · August 4, 2026

The WCJ's Notice of Intention to Sanction failed to provide adequate notice and opportunity to be heard, violating due process, and no evidentiary record was created to support the Order of Sanctions, leading to rescission of the Order.

From the decision · page 5Thus, as a matter of due process, a notice of intention must clearly state the reason(s) for its issuance and identify a means to respond. Here, the NIT issued by the WCJ failed to inform the parties that they could make a showing of good cause prior to the Order issuing and it failed to set forth the period of time in which the parties had to act. (Cal. Code Regs., tit. 8, §§ 10421; 10832(c).) Arguably, if the WCJ’s intention was to allow parties to object on the record at a hearing, rescheduling the hearing scheduled for April 25, 2023, without reissuing the NIT, did not give proper notice and meant that Zurich was denied the opportunity to be heard. Moreover, there is nothing to indicate that the WCJ intended to go forward with a hearing on the rescheduled date of May 2, 2023, as there were no Minutes of Hearing created pursuant to WCAB Rule 10787. (Cal. Code Regs., tit. 8, § 10787). Because Zenith was not afforded adequate notice and a meaningful opportunity to respond, the corresponding Order issued thereafter is invalid. Further, even if the NIT and the Order had been properly issued and served, we are unable to provide meaningful review due to the lack of a record.

The WCJ's Notice of Intention to Sanction failed to inform parties of the opportunity to show good cause and the time period to respond.

Favours Applicant prevailed

This failure violated due process and rendered the Order of Sanctions invalid.

From the decision · page 5Thus, as a matter of due process, a notice of intention must clearly state the reason(s) for its issuance and identify a means to respond. Here, the NIT issued by the WCJ failed to inform the parties that they could make a showing of good cause prior to the Order issuing and it failed to set forth the period of time in which the parties had to act. (Cal. Code Regs., tit. 8, §§ 10421; 10832(c).) Arguably, if the WCJ’s intention was to allow parties to object on the record at a hearing, rescheduling the hearing scheduled for April 25, 2023, without reissuing the NIT, did not give proper notice and meant that Zurich was denied the opportunity to be heard. Moreover, there is nothing to indicate that the WCJ intended to go forward with a hearing on the rescheduled date of May 2, 2023, as there were no Minutes of Hearing created pursuant to WCAB Rule 10787. (Cal. Code Regs., tit. 8, § 10787). Because Zenith was not afforded adequate notice and a meaningful opportunity to respond, the corresponding Order issued thereafter is invalid. Further, even if the NIT and the Order had been properly issued and served, we are unable to provide meaningful review due to the lack of a record.

No evidentiary record was created to support the Order of Sanctions.

Favours Applicant prevailed

Without a record, meaningful review of the Petition for Reconsideration was impossible, leading to rescission of the Order.

From the decision · page 5No record was created to support the Order, and without an ability to review the evidentiary record, we would not be able to complete a meaningful review of the Petition for Reconsideration. (See Lab. Code, § 5313; see also Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc); Rucker, supra, at pp. 157-158; Gangwish, supra, at p. 1295.) Even though the WCJ’s Report is well reasoned, without a record, she improperly placed herself in the role of an evidentiary witness. Finally, with respect to Zenith’s allegation that its attorneys were responsible for the failure to appear, upon return, if the WCJ intends to pursue the issue of sanctions, we recommend that the WCJ set a hearing and take in evidence to determine where the fault lies. However, we remind the parties and the WCJ that until an attorney has filed an official pleading with the WCAB to be relieved as counsel, it is expected that it is the attorney who is required to appear and/or to ensure that an appearance is otherwise made. Accordingly, as our Decision After Reconsideration we rescind the Order of Sanctions.

Cal. Code Regs., tit. 8, § 10750

Notices of hearing must be served by the WCAB to satisfy due process requirements.

Notices of hearing were served by the WCAB on December 13, 2022, February 23, 2023, and April 10, 2023, satisfying notice requirements.

From the decision · page 4550.) Determining an issue without giving the parties notice and an opportunity to be heard violates 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, at pp. 157-158.) Under WCAB Rule 10750, notices of hearing shall be served by the WCAB. (Cal. Code Regs., tit. 8, § 10750.) Here, notices of the hearings were served by the WCAB on December 13, 2022, February 23, 2023, and April 10, 2023. Contrary to the WCJ’s belief, a notation on the Minutes does not satisfy the notice requirement in WCAB Rule 10750. Under WCAB Rule 10305(c), “‘[a]ppearance’ means a party or their representative’s presence.” (Cal. Code Regs., tit. 8, § 10305(c).) Under WCAB Rule 10875(a): “All defendants and lien claimants shall appear at all lien conferences, either in person or by attorney or non-attorney representative...” (Cal. Code Regs., tit. 8, § 10875(a), emphasis added.) At the February 21, 2023 hearing, the WCJ noted on the Minutes that “defendant” is ordered to appear. When a WCJ issues an order to appear, the person who is to appear must be identified with particularity and served with the order, and to ensure due process, a separate order is favored. Under the circumstances here, an appearance by counsel was sufficient.

Cal. Code Regs., tit. 8, § 10875(a)

All defendants and lien claimants must appear at all lien conferences, either in person or by representative.

The WCJ ordered defendant to appear at lien conferences, but the appearance box was unchecked; however, an appearance by counsel was sufficient.

From the decision · page 4550.) Determining an issue without giving the parties notice and an opportunity to be heard violates 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, at pp. 157-158.) Under WCAB Rule 10750, notices of hearing shall be served by the WCAB. (Cal. Code Regs., tit. 8, § 10750.) Here, notices of the hearings were served by the WCAB on December 13, 2022, February 23, 2023, and April 10, 2023. Contrary to the WCJ’s belief, a notation on the Minutes does not satisfy the notice requirement in WCAB Rule 10750. Under WCAB Rule 10305(c), “‘[a]ppearance’ means a party or their representative’s presence.” (Cal. Code Regs., tit. 8, § 10305(c).) Under WCAB Rule 10875(a): “All defendants and lien claimants shall appear at all lien conferences, either in person or by attorney or non-attorney representative...” (Cal. Code Regs., tit. 8, § 10875(a), emphasis added.) At the February 21, 2023 hearing, the WCJ noted on the Minutes that “defendant” is ordered to appear. When a WCJ issues an order to appear, the person who is to appear must be identified with particularity and served with the order, and to ensure due process, a separate order is favored. Under the circumstances here, an appearance by counsel was sufficient.

Cal. Code Regs., tit. 8, § 10421

Sanctions may be imposed for failure to appear unless the party acted with reasonable justification or imposition is unjust.

The WCJ's Notice of Intention to Sanction did not provide adequate notice or opportunity to respond, making the Order invalid.

From the decision · page 4It is not entirely clear from the Minutes of March 21, 2023 whether the WCJ’s reference to Zurich “handling the liens in house as per Manning & Kass” meant that someone appeared on its behalf, but in any event, she did not indicate that defendant did not appear. Relying on the unchecked box as evidence of non-appearance is not sufficient because all too often, a party appears and the name of the representative is listed, but the box is inadvertently not checked. Pursuant to WCAB Rule 10832, the WCJ may issue a notice of intention for any proper purpose including but not limited to sanctioning a party. (Cal. Code Regs., tit. 8, § 10832(a)(3).) In ordering sanctions, WCAB Rule 10421 provides that: (a) On its own motion or upon the filing of a petition pursuant to rule 10510, the Workers’ Compensation Appeals Board may order payment of reasonable expenses, including attorney's fees and costs and, in addition, sanctions as provided in Labor Code section 5813. Before issuing such an order, the alleged offending party or attorney must be given notice and an opportunity to be heard. In no event shall the Workers' Compensation Appeals Board impose a monetary sanction pursuant to Labor Code section 5813 where the one subject to the sanction acted with reasonable justification or other circumstances make imposition of the sanction unjust.

The WCJ's Notice of Intention to Sanction failed to inform parties of the opportunity to show good cause and the time period to respond, violating due process.

From the decision · page 5Thus, as a matter of due process, a notice of intention must clearly state the reason(s) for its issuance and identify a means to respond. Here, the NIT issued by the WCJ failed to inform the parties that they could make a showing of good cause prior to the Order issuing and it failed to set forth the period of time in which the parties had to act. (Cal. Code Regs., tit. 8, §§ 10421; 10832(c).) Arguably, if the WCJ’s intention was to allow parties to object on the record at a hearing, rescheduling the hearing scheduled for April 25, 2023, without reissuing the NIT, did not give proper notice and meant that Zurich was denied the opportunity to be heard. Moreover, there is nothing to indicate that the WCJ intended to go forward with a hearing on the rescheduled date of May 2, 2023, as there were no Minutes of Hearing created pursuant to WCAB Rule 10787. (Cal. Code Regs., tit. 8, § 10787). Because Zenith was not afforded adequate notice and a meaningful opportunity to respond, the corresponding Order issued thereafter is invalid. Further, even if the NIT and the Order had been properly issued and served, we are unable to provide meaningful review due to the lack of a record.