ADJ11373827 — California WCAB decision

What the panel ordered

Petition for Reconsideration is denied; WCJ's evidentiary rulings and findings stand.

Defendant filed a timely Petition for Removal (treated as reconsideration) in response to the WCJ's Findings of Fact and Order issued January 18, 2024, which overruled defendant's objections to applicant's exhibits and found applicant claimed injury resulting in death.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Earnings / average weekly earningsApplicant prevailed

The WCJ overruled defendant's objections after trial, finding applicant's exhibits admissible and properly authenticated, and the panel found no significant prejudice or irreparable harm to defendant.

From the decision · page 5Defendant objects to Applicant's Exhibits 1 through 5 contending lack of foundation, authentication of those documents, identification of those documents, and defendant's due process rights to cross-examine the recipients of the text messages. Applicant's Exhibits 1 through 5 will be marked for identification and their admissibility will be ruled on at the time of the Finding and Decision. (Minutes of Hearing, October 24, 2023, p. 3.) Then, on January 18, 2024, the WCJ issued the disputed F&O, specifically finding: "Applicant's exhibits 1, 2, 3, 4, and 5 are admissible over Defendant's objection and are given the appropriate weight," and explained the reasons for his decision in the corresponding Opinion on Decision. (F&O, January 18, 2024, p. 2; Opinion on Decision, January 18, 2024, pp. 3-5.)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The WCJ held a trial on defendant's objections to applicant's exhibits and issued a decision overruling those objections, finding the exhibits admissible and properly authenticated.

Favours Applicant prevailed

This resolved the only issue raised by defendant's petition and supported denial of reconsideration/removal.

From the decision · page 5Defendant objects to Applicant's Exhibits 1 through 5 contending lack of foundation, authentication of those documents, identification of those documents, and defendant's due process rights to cross-examine the recipients of the text messages. Applicant's Exhibits 1 through 5 will be marked for identification and their admissibility will be ruled on at the time of the Finding and Decision. (Minutes of Hearing, October 24, 2023, p. 3.) Then, on January 18, 2024, the WCJ issued the disputed F&O, specifically finding: "Applicant's exhibits 1, 2, 3, 4, and 5 are admissible over Defendant's objection and are given the appropriate weight," and explained the reasons for his decision in the corresponding Opinion on Decision. (F&O, January 18, 2024, p. 2; Opinion on Decision, January 18, 2024, pp. 3-5.)

The testimony of the decedent's husband was found credible and provided ample foundation and authentication for the text messages.

Favours Applicant prevailed

This testimony supported the admissibility of the exhibits over defendant's objections.

From the decision · page 6Finally, as explained in the Report issued February 27, 2024, the WCJ explained: At trial, defendant objected to Applicant's Exhibits 1 through 5 contending lack of foundation, authentication of those documents, identification of those documents, and defendant's due process rights to cross-examine the recipients of the text messages. The court carefully considered those objections, listened to the un-rebutted and credible testimony of the decedent's husband on direct and cross, reviewed the exhibits, and made orders accordingly. The witness provided ample foundation and authentication of the text messages made from his deceased wife's account. (Report, pp. 3-4, italics added.)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Cal. Code Regs., tit. 8, § 10955(a)

Removal is an extraordinary remedy rarely exercised by the Appeals Board; granted only if petitioner shows significant prejudice or irreparable harm and that reconsideration is not an adequate remedy.

Applied to determine whether defendant's petition warranted removal or reconsideration.

From the decision · page 3Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (Cortez) (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases]; Kleemann v. Workers' Comp. Appeals Bd. (Kleemann) (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).)

Lab. Code, § 5909; Shipley v. Workers' Comp. Appeals Bd.

A petition for reconsideration is deemed denied unless the Appeals Board acts within 60 days, except when irregularities outside the petitioner's control occur (tolling applies).

Applied to toll the 60-day period due to Board's failure to act through no fault of petitioner.

From the decision · page 3Next, we note that Labor Code1 section 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;

ADJ11373827 · July 24, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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