ADJ14907929 · October 20, 2021

The WCAB found that the WCJ's orders denying the petition to set aside the OACR were issued without an adequate evidentiary record and without due process, thus granting reconsideration and rescinding the orders to allow further proceedings.

From the decision · page 1Defendant seeks reconsideration of the "Order Denying Petition to Set Aside Order Approving Compromise and Release and/or Vacate Order Approving" (Orders) issued by the workers' compensation administrative law judge (WCJ) on July 23, 2021 and August 19, 2021. Defendant contends that the settlement signed by the parties and approved by the WCJ did not accurately reflect the settlement agreement between applicant and defendant, and that the WCJ should set aside the Order Approving Compromise and Release (OACR).

No evidence or testimony was admitted at the hearing on the petition to set aside the OACR.

Favours Defendant prevailed

This lack of evidentiary record prevented the WCAB from evaluating the basis for the WCJ's order, leading to rescission and remand.

The WCJ issued orders without a Notice of Intention and without a hearing, depriving parties of due process rights.

Favours Defendant prevailed

Due process requires notice and a fair hearing, so this procedural failure required rescission of the orders and remand.

From the decision · page 5The lack of a hearing in this matter 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. "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 Orders, and we must rescind the Orders and return the matter to the WCJ on due process grounds as well.

Lab. Code, 5803

The appeals board has continuing jurisdiction and may rescind, alter, or amend any order, decision, or award for good cause after notice and hearing (Lab. Code, 5803).

The WCAB exercised its jurisdiction to rescind the WCJ's orders due to lack of evidentiary record and due process violations.

From the decision · page 2DISCUSSION "The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of [Division 4]... At any time, upon notice and after the

Cal. Code Regs., tit. 8, 10700(b)

The WCAB shall inquire into the adequacy of all Compromise and Release agreements and may set the matter for hearing to take evidence when necessary (Cal. Code Regs., tit. 8, 10700(b)).

The WCAB found no evidentiary record to evaluate the settlement agreement and thus returned the matter for further proceedings.

From the decision · page 3"The Workers' Compensation Appeals Board shall inquire into the adequacy of all Compromise and Release agreements and Stipulations with Request for Award, and may set the matter for hearing to take evidence when necessary to determine whether the agreement should be approved or disapproved, or issue findings and awards." (Cal. Code Regs., tit. 8, § 10700(b).) To determine whether there is good cause to rescind the awards and stipulations, the circumstances surrounding their execution and approval must be assessed. (See Labor Code § 5702; County of Sacramento v. Workers' Comp. AppealsBd. (Weatherall) (2000) 77 Cal.App.4th 1114, 1118- 1121 [65 Cal.Comp.Cases 1]; Robinson v. Workers' Comp. Appeals Bd. (Robinson) (1987) 194 Cal.App.3d 784, 790-792 [52 Cal.Comp.Cases 419]; Huston v. Workers' Comp. Appeals Bd. (Huston) (1979) 95 Cal.App.3d 856, 864-867 [44 Cal.Comp.Cases 798].) However, as recognized in Weatherall, the Appeals Board may also, in its discretion, reject factual stipulations and set the matter for hearing and further investigation. (Weatherall, supra, at p. 1119; Lab. Code, § 5702.)

Lab. Code, 5313

The WCJ must make and file findings upon all facts involved in the controversy and refer to the evidence in the opinion on decision (Lab. Code, 5313).

The WCAB found the WCJ failed to make findings based on evidence, necessitating remand for further proceedings.

From the decision · page 4The statutory and regulatory duties of a WCJ include the issuance of a decision that complies with Labor Code section 5313. 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 (Hamilton).) As required by section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Hamilton, supra, at 475.) The purpose of this requirement is to enable "the parties, and the Board if reconsideration is sought, [to] ascertain the basis for the decision[.]" (Hamilton, supra, at 476, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350].)

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151

Due process requires notice of hearing and a fair hearing including the opportunity to call and cross-examine witnesses and introduce evidence (Rucker v. Workers' Comp. Appeals Bd.).

The WCAB found the lack of hearing deprived parties of due process, requiring rescission of the orders and remand.

From the decision · page 5Due 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].)

Cal. Code Regs., tit. 8, 10349

The WCAB Rules allow issuing a notice of intention and setting matters for hearing if objections are filed (Cal. Code Regs., tit. 8, 10349).

The WCJ did not issue a Notice of Intention, thus depriving parties of the opportunity to object and request a hearing.

From the decision · page 5The 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 WCJ did not issue a Notice of Intention, but rather issued the Orders without making a record at the hearing. Had the WCJ issued a Notice of Intention, the aggrieved party could have objected and requested a hearing. If no party objected, then the Order would become final.

No evidence was admitted and no testimony was taken at the status conference or hearings on the petition to set aside the OACR.

The lack of a hearing prevented the parties from exercising their right to call and cross-examine witnesses and introduce evidence, violating due process.

From the decision · page 5The lack of a hearing in this matter 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. "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 Orders, and we must rescind the Orders and return the matter to the WCJ on due process grounds as well.