ADJ11508555 · September 21, 2021

The WCJ denied both parties their fundamental right to due process by issuing the Order without a hearing or notice of intention, requiring rescission and remand.

From the decision · page 4157 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 Petition for Joinder of Party Defendant Uninsured Employers Benefits Trust Fund, and we must rescind the Order and return the matter to the WCJ on due process grounds as well.

The WCJ issued the Order Denying Petition for Joinder without a hearing or notice of intention, and no evidence was admitted.

Favours neutral

This denied both parties due process, requiring rescission and remand for further proceedings.

From the decision · page 4157 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 Petition for Joinder of Party Defendant Uninsured Employers Benefits Trust Fund, and we must rescind the Order and return the matter to the WCJ on due process grounds as well.

Cal. Code Regs., tit. 8, § 10955(a)

Removal is granted only if petitioner shows substantial prejudice or irreparable harm, and reconsideration is not an adequate remedy.

Applied to determine whether removal was appropriate in this case.

From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (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 substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); Cortez, supra; Kleemann, supra.) Additionally, 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 § 5313

WCJ must issue a decision that complies with Labor Code section 5313, making and filing findings upon all facts involved in the controversy.

Applied to find the WCJ's order inadequate due to lack of record and findings.

From the decision · page 2The statutory and regulatory duties of a WCJ include the issuance of a decision that complies with Labor Code section 5313.2 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)3 (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

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158

All parties in workers' compensation proceedings retain their fundamental right to due process and a fair hearing under the California and United States Constitutions.

Applied to find that issuing the Order without a hearing denied due process.

From the decision · page 3Next, we turn to the issue of whether the WCJ violated the applicant's right to due process by issuing the Order without a hearing. All parties in workers' compensation proceedings retain their 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].) As stated by the California Supreme Court in Carstens v. Pillsbury (1916) 172 Cal. 572,

Cal. Code Regs., tit. 8, § 10349

WCAB Rules allow issuance of a notice of intention for any proper purpose, with opportunity for objection and hearing.

Applied to find that the WCJ failed to issue a notice of intention or provide a hearing.

From the decision · page 4The 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 Order with no 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 documents or testimony were admitted into evidence before the WCJ issued the Order.

From the decision · page 3Here, no documents or testimony were admitted into evidence. In the absence of an evidentiary record, we are unable to evaluate the basis for the WCJ's Order. Therefore, we must return this matter to the trial level for further proceedings.