What the panel ordered
Petition for Removal granted; Minute Order denying automatic reassignment is rescinded and the matter is returned for reassignment to a new WCJ.
Defendant sought removal of a Minute Order denying its petition for automatic reassignment of the case to a different WCJ, arguing lack of notice for a prior expedited hearing. The WCAB reviewed the petition and the WCJ's report.
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.
Defendant did not receive proper notice of the March 25, 2021 expedited hearing, so the obligation to seek reassignment at that time was not triggered under Rule 10788. The hearing was taken off calendar without substantive proceedings, and defendant timely petitioned for reassignment upon receiving valid notice for the September 9, 2021 hearing.
From the decision · page 5Therefore, under the rare circumstances presented in this case, we conclude that defendant was not required to move for automatic reassignment at or prior to the March 25, 2021 expedited hearing in order to preserve the right to seek reassignment of the September 9, 2021 expedited hearing. Accordingly, the August 24, 2021 Petition for Automatic Reassignment should have been granted, and we will grant the Petition for Removal and return the matter to the trial level for reassignment to a new WCJ.2
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant did not receive written notice of the March 25, 2021 expedited hearing as required by Rule 10788.
Favours Defendant prevailed
Without proper notice, the obligation to seek reassignment at that hearing was not triggered, preserving defendant's right to seek reassignment later.
From the decision · page 4Because the March 25, 2021 hearing resulted in the matter going off calendar without substantive proceedings, it is clear that the prohibition in subdivision (a) on initiating a petition for reassignment after the swearing in of a witness was not triggered. Similarly, given defendant's statement under penalty of perjury that it did not receive the Notice of Hearing for the March 25, 2021 hearing, and our own EAMS records which appear to corroborate this lack of service, we conclude that defendant did not receive written notice of the March 25, 2021 hearing pursuant to subdivision (c).
The March 25, 2021 hearing was taken off calendar without substantive proceedings or witness testimony.
Favours Defendant prevailed
No substantive action occurred that would indicate acquiescence to the assigned WCJ, so defendant did not waive the right to seek reassignment.
From the decision · page 4Because the March 25, 2021 hearing resulted in the matter going off calendar without substantive proceedings, it is clear that the prohibition in subdivision (a) on initiating a petition for reassignment after the swearing in of a witness was not triggered. Similarly, given defendant's statement under penalty of perjury that it did not receive the Notice of Hearing for the March 25, 2021 hearing, and our own EAMS records which appear to corroborate this lack of service, we conclude that defendant did not receive written notice of the March 25, 2021 hearing pursuant to subdivision (c).
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, § 10788
A party is entitled to automatic reassignment of a WCJ for trial or expedited hearing, but must exercise the right according to the notice provisions in Rule 10788.
Defendant did not receive notice under subdivisions (b) or (c) of Rule 10788, so the obligation to seek reassignment at the March 25, 2021 hearing was not triggered.
From the decision · page 4Because the March 25, 2021 hearing resulted in the matter going off calendar without substantive proceedings, it is clear that the prohibition in subdivision (a) on initiating a petition for reassignment after the swearing in of a witness was not triggered. Similarly, given defendant's statement under penalty of perjury that it did not receive the Notice of Hearing for the March 25, 2021 hearing, and our own EAMS records which appear to corroborate this lack of service, we conclude that defendant did not receive written notice of the March 25, 2021 hearing pursuant to subdivision (c).
What proof carried it
The evidence the panel weighed, by kind.
Defendant's statement under penalty of perjury and EAMS records corroborated lack of service of the March 25, 2021 hearing notice.
From the decision · page 4Because the March 25, 2021 hearing resulted in the matter going off calendar without substantive proceedings, it is clear that the prohibition in subdivision (a) on initiating a petition for reassignment after the swearing in of a witness was not triggered. Similarly, given defendant's statement under penalty of perjury that it did not receive the Notice of Hearing for the March 25, 2021 hearing, and our own EAMS records which appear to corroborate this lack of service, we conclude that defendant did not receive written notice of the March 25, 2021 hearing pursuant to subdivision (c).
No witnesses were sworn and the hearing was taken off calendar without substantive proceedings at the March 25, 2021 hearing.
From the decision · page 4Because the March 25, 2021 hearing resulted in the matter going off calendar without substantive proceedings, it is clear that the prohibition in subdivision (a) on initiating a petition for reassignment after the swearing in of a witness was not triggered. Similarly, given defendant's statement under penalty of perjury that it did not receive the Notice of Hearing for the March 25, 2021 hearing, and our own EAMS records which appear to corroborate this lack of service, we conclude that defendant did not receive written notice of the March 25, 2021 hearing pursuant to subdivision (c).
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