ADJ1737668 · March 13, 2024

Lien claimant failed to comply with verification, proof of service, and filing requirements under Labor Code section 4903.05 and related WCAB rules, leading to denial of lien recovery and denial of petition for reconsideration.

From the decision · page 2On September 12, 2023, the WCJ issued his F&O determining that lien claimant failed to establish that they complied with section 4903.05 and due to this failure could not recover on their lien. (Findings of Fact Nos. 3 & 4.)

Lien claimant failed to serve the Petition for Reconsideration on defendant employer, an adverse party.

Favours Defendant prevailed

Failure to serve an adverse party is grounds for dismissal of the petition under Labor Code section 5905 and WCAB Rule 10940(c).

From the decision · page 5We also observe that all petitions for reconsideration must be served on all adverse parties. (See Lab. Code § 5905.) Here, lien claimant failed to serve the Petition on defendant employer, an adverse party. The failure to properly serve all adverse parties may constitute grounds for dismissal of the petition. (See State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Paquette) (1983) 48 Cal.Comp.Cases 475 [1983 Cal. Wrk. Comp, LEXIS 3831] (writ den.).)

Lien claimant failed to attach verification and proof of service to the Petition for Reconsideration as required by WCAB Rule 10940(c).

Favours Defendant prevailed

Failure to file verification and proof of service is valid grounds for dismissal of the petition.

From the decision · page 5In addition, Workers' Compensation Appeals Board (WCAB) Rule 10940(c) requires that every petition and answer be "be verified upon oath in the manner required for verified pleadings in courts of record," and that "[a] verification and a proof of service shall be attached to each petition and answer." (Cal. Code Regs., tit. 8, § 10940(c).) Here, lien claimant has not attached the required verification or proof of service to the Petition. The failure to file a proof of service "shall constitute valid ground for dismissing the petition." (Ibid.)

Shipley v. Workers' Comp. Appeals Bd. (1991) 7 Cal.App.4th 1105

Petitions for reconsideration must be acted upon within 60 days of filing, but this time may be tolled if the petition is not received by the Appeals Board due to administrative irregularity, to preserve due process rights (Shipley v. WCAB).

The Appeals Board tolled the 60-day period due to administrative irregularity in receiving the petition, preserving the lien claimant's right to reconsideration.

From the decision · page 2Section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) However, "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley, supra, 7 Cal.App.4th at p. 1108; see Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 635 fn. 22 [70 Cal.Comp.Cases 312] ["irregularity which deprives reconsideration under the statutory scheme denies due process"].) In Shipley, applicant sought a writ of review of a decision of the Appeals Board denying his petition for reconsideration by operation of law (Lab. Code, § 5909). The Court there granted a writ of review, stating that while the "language [section 5909] appears mandatory and jurisdictional, the time periods must be based on a presumption that a claimant's file will be available to the board; any other result deprives a claimant of due process and the right to a review by the board." (Shipley, supra, 7 Cal.App.4th at pp. 1107-1108, italics added.)

WCAB Rule 10974

WCAB Rule 10974 limits consideration of newly discovered evidence in petitions for reconsideration to evidence that could not have been produced before submission or was procured by fraud, requiring a specific offer of proof and explanation.

The petition failed to provide the required offer of proof and explanation for newly discovered evidence, so the attachments were not considered.

From the decision · page 4We begin our discussion by noting that the Petition describes "new discovery" and attaches nine documentary exhibits to the Petition. (Petition, at p. 2.) However, it is not clear from the petition whether lien claimant avers it is newly discovered evidence. To the extent the attachments to the petition are offered as newly discovered evidence, WCAB Rule 10974 provides that such evidence will only be considered on the grounds that it could not, with reasonable diligence, have been produced before submission of the case, or on the ground that the decision had been procured by fraud. (Cal Code Regs., tit. 8, § 10974.) Moreover, WCAB Rule 10974 requires that the petition contain an "offer of proof, specific and detailed" providing information as to the evidence to be offered, as well as a "full and accurate statement of the reasons why the testimony or exhibits could not reasonably have been discovered or produced before submission of the case." (Cal. Code Regs., tit. 8, § 10974(e).) Here, petitioner offers no explanation of why the attached documentation could not have been produced before submission of the case, or why such documentation was procured by fraud.

WCAB Rule 10940(c)

WCAB Rule 10940(c) requires petitions and answers to be verified and served on all adverse parties, with failure to comply constituting grounds for dismissal.

The petition was unverified and not served on all adverse parties, grounds for dismissal under this rule.

From the decision · page 5We also observe that all petitions for reconsideration must be served on all adverse parties. (See Lab. Code § 5905.) Here, lien claimant failed to serve the Petition on defendant employer, an adverse party. The failure to properly serve all adverse parties may constitute grounds for dismissal of the petition. (See State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Paquette) (1983) 48 Cal.Comp.Cases 475 [1983 Cal. Wrk. Comp, LEXIS 3831] (writ den.).)

Failure to serve the Petition for Reconsideration on defendant employer, an adverse party.

From the decision · page 5We also observe that all petitions for reconsideration must be served on all adverse parties. (See Lab. Code § 5905.) Here, lien claimant failed to serve the Petition on defendant employer, an adverse party. The failure to properly serve all adverse parties may constitute grounds for dismissal of the petition. (See State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Paquette) (1983) 48 Cal.Comp.Cases 475 [1983 Cal. Wrk. Comp, LEXIS 3831] (writ den.).)

Failure to attach verification and proof of service to the Petition for Reconsideration as required by WCAB Rule 10940(c).

From the decision · page 5In addition, Workers' Compensation Appeals Board (WCAB) Rule 10940(c) requires that every petition and answer be "be verified upon oath in the manner required for verified pleadings in courts of record," and that "[a] verification and a proof of service shall be attached to each petition and answer." (Cal. Code Regs., tit. 8, § 10940(c).) Here, lien claimant has not attached the required verification or proof of service to the Petition. The failure to file a proof of service "shall constitute valid ground for dismissing the petition." (Ibid.)