ADJ10947203 · December 27, 2024

The dismissal order was invalid because the applicant was represented by counsel at the mandatory settlement conference, which constitutes an appearance under the applicable rules, and the notice of intention to dismiss did not meet due process requirements including proper naming and adequate notice.

From the decision · page 6The Order was based on the WCJ's determination that applicant "failed to appear at the Mandatory Settlement Conference on November 4, 2021..." but the record does not support this finding. Applicant's attorney was present, representing applicant, at the November 4, 2021 MSC, and at the August 12 and September 23, 2021 status conferences cited in the NIT. Applicant's attorney's appearance at each proceeding met the requirement that an applicant, "...shall appear or have an attorney or non-attorney representative appear at all hearings pertaining to the case in chief." (Cal. Code Regs., tit. 8, § 10752 (a), emphasis added).) Moreover, applicant "appeared" at each proceeding, pursuant to the definition of "appearance" as "a party or their representative's presence, pursuant to Labor Code section 5700, at any hearing." (Cal. Code Regs., tit. 8, § 10305 (c), emphasis added.) Thus, the determination that applicant "failed to appear," which the WCJ relied upon in issuing the Order is incorrect. The WCJ's reference to WCAB Rule 10755 is similarly incorrect. That Rule, which addresses only the situation where "a required party, after notice, fails to appear" at an MSC, is inapplicable here, when applicant was represented by counsel at the MSC and thus did not fail to appear. (Cal. Code Regs., tit. 8, § 10755.)

Applicant was represented by counsel at the mandatory settlement conference and prior hearings, constituting appearance under the rules

Favours Applicant prevailed

This fact invalidated the dismissal order based on failure to appear, as the applicant did appear through counsel.

From the decision · page 6The Order was based on the WCJ's determination that applicant "failed to appear at the Mandatory Settlement Conference on November 4, 2021..." but the record does not support this finding. Applicant's attorney was present, representing applicant, at the November 4, 2021 MSC, and at the August 12 and September 23, 2021 status conferences cited in the NIT. Applicant's attorney's appearance at each proceeding met the requirement that an applicant, "...shall appear or have an attorney or non-attorney representative appear at all hearings pertaining to the case in chief." (Cal. Code Regs., tit. 8, § 10752 (a), emphasis added).) Moreover, applicant "appeared" at each proceeding, pursuant to the definition of "appearance" as "a party or their representative's presence, pursuant to Labor Code section 5700, at any hearing." (Cal. Code Regs., tit. 8, § 10305 (c), emphasis added.) Thus, the determination that applicant "failed to appear," which the WCJ relied upon in issuing the Order is incorrect. The WCJ's reference to WCAB Rule 10755 is similarly incorrect. That Rule, which addresses only the situation where "a required party, after notice, fails to appear" at an MSC, is inapplicable here, when applicant was represented by counsel at the MSC and thus did not fail to appear. (Cal. Code Regs., tit. 8, § 10755.)

Notice of intention to dismiss did not include applicant's full legal name and was mailed only to California address despite applicant being in Mexico

Favours Applicant prevailed

This procedural defect violated due process and invalidated the dismissal order.

From the decision · page 7The November 4, 2021 NIT, similarly, failed to comport with due process. It did not provide adequate notice to applicant of a possible dismissal because it failed to include applicant's "full legal name," as required. (Cal. Code Regs., tit. 8, § 10390 (a); see, generally, Cal. Code Civ. Proc. § 1985 (a), 1987 (a); Lab. Code § 3210; Cal. Code Regs., tit. 8, § 10640, 10642.) The NIT did not meet minimal due process requirements, too, because it was written on the Minutes rather than being issued as a stand-alone order, which would have clearly communicated to applicant the necessary steps to avoid dismissal. Finally, the NIT failed to comport with due process because it did not inform applicant about the correct legal basis for the proposed dismissal, when it incorrectly referenced WCAB Rule 10755 instead of WCAB Rule 10832(a)(5). (Cal. Code Regs., tit. 8, § 10755, 10832 (a)(5); 10752.)

Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449

Due process requires notice reasonably calculated to apprise interested parties and an opportunity to be heard before dismissal

The notice of intention to dismiss did not meet due process requirements because it failed to properly name the applicant and was not served at an address where the applicant was likely to receive it.

From the decision · page 7It is one of the basic tenets of jurisprudence that a party must be provided notice and an opportunity to be heard before their case is dismissed. (See, e.g., San Bernardino Cmty. Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928, 936 [64 Cal.Comp.Cases 986].) Although it is a party's duty, under WCAB Rule 10205.5 (Cal. Code Regs., tit. 8, § 10205.5) to maintain an accurate mailing address with the Board, "`an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action

Applicant's attorney appeared at all hearings including the mandatory settlement conference, constituting appearance under the rules

From the decision · page 6The Order was based on the WCJ's determination that applicant "failed to appear at the Mandatory Settlement Conference on November 4, 2021..." but the record does not support this finding. Applicant's attorney was present, representing applicant, at the November 4, 2021 MSC, and at the August 12 and September 23, 2021 status conferences cited in the NIT. Applicant's attorney's appearance at each proceeding met the requirement that an applicant, "...shall appear or have an attorney or non-attorney representative appear at all hearings pertaining to the case in chief." (Cal. Code Regs., tit. 8, § 10752 (a), emphasis added).) Moreover, applicant "appeared" at each proceeding, pursuant to the definition of "appearance" as "a party or their representative's presence, pursuant to Labor Code section 5700, at any hearing." (Cal. Code Regs., tit. 8, § 10305 (c), emphasis added.) Thus, the determination that applicant "failed to appear," which the WCJ relied upon in issuing the Order is incorrect. The WCJ's reference to WCAB Rule 10755 is similarly incorrect. That Rule, which addresses only the situation where "a required party, after notice, fails to appear" at an MSC, is inapplicable here, when applicant was represented by counsel at the MSC and thus did not fail to appear. (Cal. Code Regs., tit. 8, § 10755.)

Notice of intention to dismiss failed to include applicant's full legal name and was mailed only to California address despite applicant being in Mexico

From the decision · page 7The November 4, 2021 NIT, similarly, failed to comport with due process. It did not provide adequate notice to applicant of a possible dismissal because it failed to include applicant's "full legal name," as required. (Cal. Code Regs., tit. 8, § 10390 (a); see, generally, Cal. Code Civ. Proc. § 1985 (a), 1987 (a); Lab. Code § 3210; Cal. Code Regs., tit. 8, § 10640, 10642.) The NIT did not meet minimal due process requirements, too, because it was written on the Minutes rather than being issued as a stand-alone order, which would have clearly communicated to applicant the necessary steps to avoid dismissal. Finally, the NIT failed to comport with due process because it did not inform applicant about the correct legal basis for the proposed dismissal, when it incorrectly referenced WCAB Rule 10755 instead of WCAB Rule 10832(a)(5). (Cal. Code Regs., tit. 8, § 10755, 10832 (a)(5); 10752.)