ADJ14935109 — California WCAB decision

What the panel ordered

The WCAB rescinded the October 26, 2022 Order Dismissing and returned the matter to the trial level for further proceedings.

Applicant sought reconsideration of the dismissal order issued by the WCJ on October 26, 2022, which dismissed the case for lack of prosecution.

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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.

Reconsideration / removalApplicant prevailed

The dismissal order was rescinded due to defendant's failure to properly serve notices and petitions, violating due process and WCAB rules, and premature issuance of the dismissal order.

From the decision · page 4(Cal. Code Regs., tit. 8, § 10550.) WCAB Rule 10625(d), requires that "where a party receives notification that the service to one or more parties failed, the server shall re-serve the document on all intended recipients and execute a new proof of service, or provide a courtesy copy to the recipient on whom service failed, within a reasonable amount of time." (Cal. Code Regs., tit. 8, § 10625(d).) WCAB Rule 10832 requires, in pertinent part, that (a) The Workers' Compensation Appeals Board may issue a notice of intention for any proper purpose, including dismissing an application; and (b) that a Notice of Intention may be served by designated service in accordance with rule 10629. (Cal. Code Regs., tit. 8, § 10832.) Due process requires that a party be provided with reasonable notice and an opportunity to be heard. (Katzin v. Workers' Comp. Appeals Bd.

The facts that decided it

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

Defendant failed to serve the 30-day notice letter to applicant's attorney at the correct address after the attorney filed a change of address.

Favours Applicant prevailed

This failure violated WCAB Rule 10550(b) and WCAB Rule 10625(d), invalidating the Petition to Dismiss and dismissal order.

From the decision · page 4(1992) 5 Cal.App.4th 703, 711-712 [57 Cal.Comp.Cases 230].) Here, there were three significant due process violations and violations of the requirements of WCAB Rules 10550 and 10625(d). First, defendant did not comply with WCAB Rule 10550(b), which requires that thirty days prior to filing a petition to dismiss, the defendant must send a letter to applicant and applicant's attorney, informing them of defendant's intention to file a "petition to dismiss inactive case." (Cal. Code Regs., tit. 8, § 10550(b).) Defendant sent the required letter but failed to adequately serve applicant's attorney. (Defendant's Petition to Dismiss, Attachment A). Applicant's attorney filed and served a change of address on June 22, 2022. Upon receiving notice that applicant's attorney had a new address, defendant was required to re-serve the letter to applicant's attorney, at the correct address. (Cal. Code Regs., tit. 8, § 10625(d).) Defendant did not do so. The record contains no information that the letter was re-sent to the correct address for applicant's counsel, that a courtesy copy of the letter was provided to applicant's counsel, nor that applicant's counsel received the letter sent to the incorrect address. Thus, defendant's 30-day notice letter was not served on applicant's attorney, as required.

Defendant failed to serve the Petition to Dismiss on applicant's attorney at the correct address, violating WCAB Rule 10550(c).

Favours Applicant prevailed

This failure meant no valid Petition to Dismiss was filed, undermining the basis for dismissal.

From the decision · page 5Second, defendant's September 1, 2022, Petition to Dismiss for Lack of Prosecution failed to comply with the service requirement in WCAB Rule 10550(c), which mandates that a petition to dismiss shall be served on all parties pursuant to WCAB Rule 10625. (Cal. Code Regs., tit. 8, § 10550(c).) Defendant failed to serve applicant's attorney, because defendant mailed the September 1, 2022 petition to the wrong address. This error, like the error regarding defendant's June 22 letter, was not corrected. As both defendant's June 22 letter, and defendant's September 1 petition were never adequately served, no valid Petition to Dismiss was filed in this matter.2 If the Petition to Dismiss is invalid, then there is no sufficient basis for the NIT, and thus the NIT is void.

The dismissal order was issued only 14 days after the Notice of Intention to Dismiss was served, less than the required 20 days.

Favours Applicant prevailed

This premature issuance violated due process, rendering the dismissal order void.

From the decision · page 5Lastly, applicant's due process rights to notice and an opportunity to be heard were violated because the dismissal order was issued without allowing sufficient time for applicant to respond. The NIT indicated that if good cause to the contrary was not shown, the dismissal order would issue twenty days from the date of service of the NIT. Defendant served the NIT on applicant's attorney, at his correct address, on October 12, 2022. The WCJ issued the dismissal order on October 26, 2022, only fourteen days after the NIT was served. The premature issuance of the dismissal order rendered that order void.

The rules the panel named

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

Cal. Code Regs., tit. 8, 10550

WCAB Rule 10550 regarding petitions to dismiss inactive cases

Defendant failed to comply with the 30-day notice and service requirements, invalidating the Petition to Dismiss and the dismissal order.

From the decision · page 4(Cal. Code Regs., tit. 8, § 10550.) WCAB Rule 10625(d), requires that "where a party receives notification that the service to one or more parties failed, the server shall re-serve the document on all intended recipients and execute a new proof of service, or provide a courtesy copy to the recipient on whom service failed, within a reasonable amount of time." (Cal. Code Regs., tit. 8, § 10625(d).) WCAB Rule 10832 requires, in pertinent part, that (a) The Workers' Compensation Appeals Board may issue a notice of intention for any proper purpose, including dismissing an application; and (b) that a Notice of Intention may be served by designated service in accordance with rule 10629. (Cal. Code Regs., tit. 8, § 10832.) Due process requires that a party be provided with reasonable notice and an opportunity to be heard. (Katzin v. Workers' Comp. Appeals Bd.

Cal. Code Regs., tit. 8, 10625(d)

WCAB Rule 10625(d) regarding re-service of documents when service fails

Defendant did not re-serve the 30-day notice letter or Petition to Dismiss after learning of applicant's attorney's address change, violating service rules.

From the decision · page 4(Cal. Code Regs., tit. 8, § 10550.) WCAB Rule 10625(d), requires that "where a party receives notification that the service to one or more parties failed, the server shall re-serve the document on all intended recipients and execute a new proof of service, or provide a courtesy copy to the recipient on whom service failed, within a reasonable amount of time." (Cal. Code Regs., tit. 8, § 10625(d).) WCAB Rule 10832 requires, in pertinent part, that (a) The Workers' Compensation Appeals Board may issue a notice of intention for any proper purpose, including dismissing an application; and (b) that a Notice of Intention may be served by designated service in accordance with rule 10629. (Cal. Code Regs., tit. 8, § 10832.) Due process requires that a party be provided with reasonable notice and an opportunity to be heard. (Katzin v. Workers' Comp. Appeals Bd.

Cal. Code Regs., tit. 8, 10832

WCAB Rule 10832 regarding Notice of Intention

The Notice of Intention to Dismiss must be served properly and allow sufficient time for response; here, the dismissal order was premature.

From the decision · page 4(Cal. Code Regs., tit. 8, § 10550.) WCAB Rule 10625(d), requires that "where a party receives notification that the service to one or more parties failed, the server shall re-serve the document on all intended recipients and execute a new proof of service, or provide a courtesy copy to the recipient on whom service failed, within a reasonable amount of time." (Cal. Code Regs., tit. 8, § 10625(d).) WCAB Rule 10832 requires, in pertinent part, that (a) The Workers' Compensation Appeals Board may issue a notice of intention for any proper purpose, including dismissing an application; and (b) that a Notice of Intention may be served by designated service in accordance with rule 10629. (Cal. Code Regs., tit. 8, § 10832.) Due process requires that a party be provided with reasonable notice and an opportunity to be heard. (Katzin v. Workers' Comp. Appeals Bd.

Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703

Due process requires reasonable notice and opportunity to be heard

Applicant's due process rights were violated by improper service and premature dismissal order.

From the decision · page 4(Cal. Code Regs., tit. 8, § 10550.) WCAB Rule 10625(d), requires that "where a party receives notification that the service to one or more parties failed, the server shall re-serve the document on all intended recipients and execute a new proof of service, or provide a courtesy copy to the recipient on whom service failed, within a reasonable amount of time." (Cal. Code Regs., tit. 8, § 10625(d).) WCAB Rule 10832 requires, in pertinent part, that (a) The Workers' Compensation Appeals Board may issue a notice of intention for any proper purpose, including dismissing an application; and (b) that a Notice of Intention may be served by designated service in accordance with rule 10629. (Cal. Code Regs., tit. 8, § 10832.) Due process requires that a party be provided with reasonable notice and an opportunity to be heard. (Katzin v. Workers' Comp. Appeals Bd.

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Applicant prevailed

Defendant failed to serve applicant's attorney at the correct address for the 30-day notice letter and the Petition to Dismiss, violating WCAB service rules.

From the decision · page 4(1992) 5 Cal.App.4th 703, 711-712 [57 Cal.Comp.Cases 230].) Here, there were three significant due process violations and violations of the requirements of WCAB Rules 10550 and 10625(d). First, defendant did not comply with WCAB Rule 10550(b), which requires that thirty days prior to filing a petition to dismiss, the defendant must send a letter to applicant and applicant's attorney, informing them of defendant's intention to file a "petition to dismiss inactive case." (Cal. Code Regs., tit. 8, § 10550(b).) Defendant sent the required letter but failed to adequately serve applicant's attorney. (Defendant's Petition to Dismiss, Attachment A). Applicant's attorney filed and served a change of address on June 22, 2022. Upon receiving notice that applicant's attorney had a new address, defendant was required to re-serve the letter to applicant's attorney, at the correct address. (Cal. Code Regs., tit. 8, § 10625(d).) Defendant did not do so. The record contains no information that the letter was re-sent to the correct address for applicant's counsel, that a courtesy copy of the letter was provided to applicant's counsel, nor that applicant's counsel received the letter sent to the incorrect address. Thus, defendant's 30-day notice letter was not served on applicant's attorney, as required.

Documentary evidencefavours Applicant prevailed

The dismissal order was issued only 14 days after the Notice of Intention to Dismiss was served, less than the required 20 days, violating due process.

From the decision · page 5Lastly, applicant's due process rights to notice and an opportunity to be heard were violated because the dismissal order was issued without allowing sufficient time for applicant to respond. The NIT indicated that if good cause to the contrary was not shown, the dismissal order would issue twenty days from the date of service of the NIT. Defendant served the NIT on applicant's attorney, at his correct address, on October 12, 2022. The WCJ issued the dismissal order on October 26, 2022, only fourteen days after the NIT was served. The premature issuance of the dismissal order rendered that order void.

ADJ14935109 · November 27, 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

What proof carried it

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