ADJ13500562 · April 19, 2024

Applicant was not served with the Notice of Intention to Dismiss or the Order of Dismissal due to incorrect address, violating due process and WCAB rules, rendering the dismissal orders void and requiring rescission and further proceedings.

From the decision · page 2We will briefly review the relevant facts. In case number ADJ13500562, applicant claimed injury to unspecified body parts while employed by defendant as a laborer, during the period from June 2, 2019 to June 2, 2020. In case number ADJ13500563, applicant claimed injury to unspecified body parts while employed by defendant as a laborer on June 1, 2016. The address provided on each application for adjudication was 167 Heartstone Dr., American Canyon, CA, 94503, which applicant's attorney now contends is incorrect.1 On October 20, 2022, defendant filed a petition to dismiss the cases for lack of prosecution. On November 7, 2022, the WCJ issued a notice of intention to dismiss the cases for lack of prosecution (NIT), "unless written objection was received within thirty (30) days at the following address: Workers' Compensati

Applicant was not served with the Notice of Intention to Dismiss due to incorrect address in the Official Address Record

Favours Applicant prevailed

This failure deprived applicant of notice and opportunity to be heard, violating due process and WCAB rules, rendering the dismissal order void.

From the decision · page 2We will briefly review the relevant facts. In case number ADJ13500562, applicant claimed injury to unspecified body parts while employed by defendant as a laborer, during the period from June 2, 2019 to June 2, 2020. In case number ADJ13500563, applicant claimed injury to unspecified body parts while employed by defendant as a laborer on June 1, 2016. The address provided on each application for adjudication was 167 Heartstone Dr., American Canyon, CA, 94503, which applicant's attorney now contends is incorrect.1 On October 20, 2022, defendant filed a petition to dismiss the cases for lack of prosecution. On November 7, 2022, the WCJ issued a notice of intention to dismiss the cases for lack of prosecution (NIT), "unless written objection was received within thirty (30) days at the following address: Workers' Compensati

Applicant was not served with the Order dismissing the cases due to incorrect address in the Official Address Record

Favours Applicant prevailed

This failure deprived applicant of notice and opportunity to be heard, violating due process and WCAB rules, rendering the dismissal order void.

From the decision · page 2on Appeals Board, Division of Workers' Compensation, State of California, PO Box 429003, San Francisco, CA 94142-9003." However applicant was not served with the NIT because the address in the OAR contained the wrong street name. On December 15, 2022, the WCJ issued an Order dismissing the cases. Applicant was not served with the Order of dismissal because the address in the OAR contained the wrong street name. On or about December 22, 2022, applicant filed a DOR2, requesting a March 2, 2023 Mandatory Settlement Conference (MSC) on various issues, stating as follows: Applicant moves to strike QME Edward Hughes for national origin, racial and ethnic bias. Applicant objects to dismissal of application and activates case by this DOR. (Applicant's DOR, dated December 22, 2022, p. 7 (converted from all-caps in original).)

Lab. Code, §§ 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068

A petition for reconsideration may only be taken from a final order, decision, or award. A final order determines substantive rights or a threshold issue fundamental to the claim for benefits.

The December 15, 2022 Order dismissing the cases is likely a final order, so the petition for reconsideration is treated collectively as a petition for reconsideration.

From the decision · page 3A petition for reconsideration may only be taken from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Here, the December 15, 2022 Order dismissing case number ADJ13500562 and case number

Cal. Code Regs., tit. 8, §§ 10615, 10803

Documents must be filed with the WCAB either in EAMS or with the district office having venue. Filing date is the date the document is received and endorsed. Notice requiring receipt at a post office box deprives a party of the opportunity to file directly with the district office, violating due process.

The Notice of Intention to Dismiss required written objection to be sent to a post office box, which deprived applicant of due process.

From the decision · page 4WCAB Rule 10615 defines "filing" a document as filing with the WCAB. WCAB Rule 10615 (Cal. Code Regs., tit. 8, § 10615) provides in relevant part that "... all documents... shall be filed only in EAMS or with the district office having venue." While Rule 10615 also allows a WCJ to make orders regarding filing, here, the NIT did not refer to filing and instead used the term "received" at a post office box. With respect to determining a filing date, subdivision (b) provides that a "document is deemed filed on the date it is received," and subdivision (c) states that the WCAB "shall affix on it an appropriate endorsement as evidence of receipt." (Cal. Code Regs., tit. 8, § 10615.) Thus, even though a document is "received," it is not formally accepted into the WCAB's adjudication file until it has been processed by an endorsement on a paper document or through EAMS. (Cal. Code Regs., tit.

California Constitution, Article XIV, section 4; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151; San Bernardino Cmty. Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928

All parties have a fundamental right to due process and a fair hearing under the California and United States Constitutions. Notice and opportunity to be heard must be provided before dismissal.

Applicant was not served with the Notice of Intention to Dismiss or the Order of Dismissal, violating due process rights.

From the decision · page 4As the WCJ notes, it is a party's duty to maintain an accurate mailing address with the Board, in part to effectuate service of documents. (Cal. Code Regs., tit. 8, § 10205.5.) While we are sympathetic to the WCJ's observation that several of the issues before us arise from applicant's attorney's failure to provide an accurate mailing address for his client, all parties 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].)

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

Decisions must be based on admitted evidence in the record, and the WCJ must refer to the evidence in the opinion on decision to enable parties to ascertain the basis for the decision.

The dismissal order was void due to lack of proper notice and evidence, requiring remand for further proceedings.

From the decision · page 5Decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Bd. en banc) (Hamilton).) As required by Labor Code section 53134 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 basis for the decision[.]" (Hamilton, supra, at 476, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal. 2d 753, 755 [33 Cal.Comp.Cases 350].)

Applicant was not served with the Notice of Intention to Dismiss or the Order of Dismissal due to incorrect address in the Official Address Record

From the decision · page 2We will briefly review the relevant facts. In case number ADJ13500562, applicant claimed injury to unspecified body parts while employed by defendant as a laborer, during the period from June 2, 2019 to June 2, 2020. In case number ADJ13500563, applicant claimed injury to unspecified body parts while employed by defendant as a laborer on June 1, 2016. The address provided on each application for adjudication was 167 Heartstone Dr., American Canyon, CA, 94503, which applicant's attorney now contends is incorrect.1 On October 20, 2022, defendant filed a petition to dismiss the cases for lack of prosecution. On November 7, 2022, the WCJ issued a notice of intention to dismiss the cases for lack of prosecution (NIT), "unless written objection was received within thirty (30) days at the following address: Workers' Compensati