Authorities as the decision cited them, with how this panel applied each one.
Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151
Due process requires notice and opportunity to be heard before joining or dismissing a party defendant.
The WCJ's order joining Zurich was rescinded because it was issued without notice of intention or hearing, violating due process.
From the decision · page 2Parties 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
is "one of `the rudiments of fair play' assured to every litigant...." (Id. at p. 158.) As stated by the
California Supreme Court in Carstens v. Pillsbury (1916) 172 Cal. 572, "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 p. 577.) 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].)
Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473
The WCJ must make findings based on admitted evidence and substantial evidence to support decisions affecting parties' rights.
The WCJ's order was rescinded due to lack of an evidentiary record to support the joinder decision.
From the decision · page 2Section 5313 also requires the WCJ to "make and file findings upon all facts involved in
the controversy and [make and file] an award, order, or decision stating the determination as to the
rights of the parties... [and include] a summary of the evidence received and relied upon and the
reasons or grounds upon which the determination was made." (Lab. Code, § 5313.) The WCJ's
decision "must be based on admitted evidence in the record" (Hamilton v. Lockheed Corporation
(Hamilton) (2001) 66 Cal.Comp.Cases 473, 478 (Appeals Bd. en banc)), and the decision must be
supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp.
Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals
Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workers' Comp. Appeals Bd.
(1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) In Hamilton, we held that the record of proceedings
must contain, at a minimum, "the issues submitted for decision, the admissions and stipulations of
the parties, and the admitted evidence." (Hamilton, supra, at p. 475.)
Cal. Code Regs., tit. 8, 10832
WCAB Rule 10832 provides a process for issuing a Notice of Intention to afford parties due process.
The WCJ failed to provide notice of intention under Rule 10832 before joining Zurich, leading to rescission of the order.
From the decision · page 3We note that here, one of the procedural options available to the WCJ was the issuance of
a Notice of Intention (NIT). WCAB Rule 10832 describes the process by which a WCJ may issue
an NIT, and provides a framework designed to afford the parties with their "fundamental rights to
due process." (Rucker, supra, at pp. 157-158.) Rule 10832 provides that following the filing of a
petition, the WCJ may, "for any proper purpose," provide notice of its intended action, and
thereafter provide the parties with corresponding opportunity to respond to the notice. (Cal. Code
Regs., tit. 8, § 10832(a).) The process of issuing a Notice of Intention thus provides both notice to
the parties of the court's intended course of action, and the opportunity for those parties to be
heard. (See also San Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (McKernan)
(1999) 74 Cal.App.4th 928, 936 [64 Cal.Comp.Cases 986] [the essence of due process is notice
and opportunity to be heard].) Issuing a notice of intention clearly sets out the next steps required
of the parties and the WCJ, and encourages the creation of a complete record which reflects the
evidentiary and the legal bases for the WCJ's determination. (Evans v. Workmen's Comp. Appeals
Bd., supra, at p. 755.)