What the panel ordered
Petition for reconsideration granted; WCJ Order dismissing lien rescinded; matter returned to WCJ for further proceedings.
Petition for reconsideration filed by lien claimant Unicare Surgery Center seeking review of WCJ Order dismissing lien issued September 16, 2024.
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.
The lien claimant was not properly served with the notice of hearing or the Order dismissing the lien, violating due process rights and WCAB rules, rendering the dismissal order void and warranting reconsideration.
From the decision · page 4II. There are 25 days allowed within which to file a petition for reconsideration from a "final" decision that has been served by mail upon an address in California. (Lab. Code, § 5900(a), 5903; Cal. Code Regs., tit. 8, § 10605(a)(1).) However, contrary to WCAB Rules regarding filing and service of documents, lien claimant's representative was not served with the Order dismissing Unicare Surgery Center's lien. (Cal. Code Regs., tit. 8, § 10610, 10615, 10625, 10628.) Because lien claimant's representative was not served with the Order of dismissal, the Petition is timely. The notice of hearing for the lien conference was returned as undeliverable, thus it is not clear that lien claimant received notice of the hearing. (Lab. Code, § 5504; Cal. Code Regs., tit. 8, § 10625(d).) Lien claimant's non-attorney representative asserts that they did not receive proper notice of the lien conference hearing, which raises procedural due process concerns as to whether the required notice was received.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Notice of hearing sent to lien claimant's representative at an address that was returned as undeliverable with USPS markings indicating 'box closed' and 'unable to forward'.
Favours Applicant prevailed
This defective service raised due process concerns about proper notice of the lien conference hearing.
From the decision · page 2On May 3, 2024, a notice of hearing issued for a lien conference on August 22, 2024. On May 13, 2024, the notice of hearing addressed to ARZ Lien Solutions at P.O. Box 1208, Temecula, CA 92593 was returned as undeliverable, marked as "box closed," "unable to forward," and "return to sender." Per the minutes of hearing issued by the WCJ, lien claimant did not appear at the August 22, 2024, lien conference, and the minutes state: "NOI to dismiss Unicare Surgery Center will issue in a separate document." (Minutes of Hearing from August 22, 2024 conference, served August 23, 2024, p. 1.) On August 22, 2024, the WCJ executed a notice of intention to dismiss Unicare Surgery Center's lien:
Lien claimant's representative was not served with the Order dismissing the lien, violating WCAB Rule 10832(d).
Favours Applicant prevailed
Failure to serve the dismissal order deprived lien claimant of due process, rendering the order void and justifying reconsideration.
From the decision · page 4Further, lien claimant's representative was not served with the Order of dismissal issued on September 16, 2024, in violation of WCAB Rule 10832(d).2 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].) It 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].) The failure to serve lien claimant with the Order of dismissal constitutes a fundamental violation of lien claimant's due process rights, rendering the resulting September 16, 2024 Order of dismissal void on its face. Lien claimant's representative contends that "My office has been having a repeated issue with the board not sending notifications to my PO Box. The WCAB has
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, § 5909
Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.
The Appeals Board acted timely on the petition filed by lien claimant.
From the decision · page 3Former Labor Code section1 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:
Lab. Code, § 5504; Cal. Code Regs., tit. 8, § 10625(d); Cal. Code Regs., tit. 8, § 10832(d)
Parties must be provided notice of hearings and orders to satisfy due process.
Lien claimant was not properly served with notice of hearing or dismissal order, violating due process and WCAB rules.
From the decision · page 4II. There are 25 days allowed within which to file a petition for reconsideration from a "final" decision that has been served by mail upon an address in California. (Lab. Code, § 5900(a), 5903; Cal. Code Regs., tit. 8, § 10605(a)(1).) However, contrary to WCAB Rules regarding filing and service of documents, lien claimant's representative was not served with the Order dismissing Unicare Surgery Center's lien. (Cal. Code Regs., tit. 8, § 10610, 10615, 10625, 10628.) Because lien claimant's representative was not served with the Order of dismissal, the Petition is timely. The notice of hearing for the lien conference was returned as undeliverable, thus it is not clear that lien claimant received notice of the hearing. (Lab. Code, § 5504; Cal. Code Regs., tit. 8, § 10625(d).) Lien claimant's non-attorney representative asserts that they did not receive proper notice of the lien conference hearing, which raises procedural due process concerns as to whether the required notice was received.
What proof carried it
The evidence the panel weighed, by kind.
Lien claimant's representative did not receive proper notice of the lien conference hearing and was not served with the Order dismissing the lien, violating due process rights.
From the decision · page 4II. There are 25 days allowed within which to file a petition for reconsideration from a "final" decision that has been served by mail upon an address in California. (Lab. Code, § 5900(a), 5903; Cal. Code Regs., tit. 8, § 10605(a)(1).) However, contrary to WCAB Rules regarding filing and service of documents, lien claimant's representative was not served with the Order dismissing Unicare Surgery Center's lien. (Cal. Code Regs., tit. 8, § 10610, 10615, 10625, 10628.) Because lien claimant's representative was not served with the Order of dismissal, the Petition is timely. The notice of hearing for the lien conference was returned as undeliverable, thus it is not clear that lien claimant received notice of the hearing. (Lab. Code, § 5504; Cal. Code Regs., tit. 8, § 10625(d).) Lien claimant's non-attorney representative asserts that they did not receive proper notice of the lien conference hearing, which raises procedural due process concerns as to whether the required notice was received.
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About this page
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