What the panel ordered
Petition for Removal granted, the Order Denying Petition for Change of Venue dated February 16, 2023 is rescinded, and the matter is returned to the PWCJ for further proceedings and decision.
Defendant petitioned for removal from an Order Denying Petition for Change of Venue dated February 16, 2023, which denied defendant's January 30, 2023 Petition for Change of Venue as untimely.
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 WCAB found the record insufficient to confirm timely service of the Notice of Application on the employer, which is required to start the 30-day period for filing a Petition for Change of Venue. The absence of proof of service and the employer's declaration of non-receipt justified granting removal to allow further proceedings.
From the decision · page 3Here, the record is insufficient to allow a meaningful review of the PWCJ's determination of the issues presented. We acknowledge the PWCJ's reference to the EAMS communications record, but note that the underlying Notice of Application is not present in the record, nor is proof of service of the Notice on the employer or other parties on November 28, 2022. This omission concerns us because the 30-day time for a defendant to object to venue selection based on applicant's attorney's principal place of business under Labor Code section 5501.5(a)(3) is measured from receipt of the actual notice of the adjudication case number and venue. (Cal. Code Regs., tit. 8, § 10488.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The Notice of Application was not present in the record, nor was proof of service of the Notice on the employer on November 28, 2022.
Favours Defendant prevailed
This absence made it impossible to confirm the start of the 30-day period for filing the Petition for Change of Venue, which was critical to determining timeliness.
From the decision · page 3Here, the record is insufficient to allow a meaningful review of the PWCJ's determination of the issues presented. We acknowledge the PWCJ's reference to the EAMS communications record, but note that the underlying Notice of Application is not present in the record, nor is proof of service of the Notice on the employer or other parties on November 28, 2022. This omission concerns us because the 30-day time for a defendant to object to venue selection based on applicant's attorney's principal place of business under Labor Code section 5501.5(a)(3) is measured from receipt of the actual notice of the adjudication case number and venue. (Cal. Code Regs., tit. 8, § 10488.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 10488
The 30-day time for a defendant to object to venue selection is measured from receipt of the actual notice of the adjudication case number and venue.
The Board found the record lacked proof of service of the Notice of Application, making the timeliness of the Petition for Change of Venue uncertain.
From the decision · page 3Here, the record is insufficient to allow a meaningful review of the PWCJ's determination of the issues presented. We acknowledge the PWCJ's reference to the EAMS communications record, but note that the underlying Notice of Application is not present in the record, nor is proof of service of the Notice on the employer or other parties on November 28, 2022. This omission concerns us because the 30-day time for a defendant to object to venue selection based on applicant's attorney's principal place of business under Labor Code section 5501.5(a)(3) is measured from receipt of the actual notice of the adjudication case number and venue. (Cal. Code Regs., tit. 8, § 10488.)
What proof carried it
The evidence the panel weighed, by kind.
Absence of proof of service of the Notice of Application on the employer and the employer's declaration of non-receipt
From the decision · page 3Here, the record is insufficient to allow a meaningful review of the PWCJ's determination of the issues presented. We acknowledge the PWCJ's reference to the EAMS communications record, but note that the underlying Notice of Application is not present in the record, nor is proof of service of the Notice on the employer or other parties on November 28, 2022. This omission concerns us because the 30-day time for a defendant to object to venue selection based on applicant's attorney's principal place of business under Labor Code section 5501.5(a)(3) is measured from receipt of the actual notice of the adjudication case number and venue. (Cal. Code Regs., tit. 8, § 10488.)
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About this page
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