What the panel ordered
Petition for Reconsideration granted; WCJ's Order Re: Sanctions rescinded.
Applicant's attorney petitioned for reconsideration of a WCJ order imposing sanctions for failure to appear and listing the incorrect insurance carrier; the WCAB reviewed the petition, the WCJ's report, and the record.
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.
Applicant's attorney was not required to appear at the lien conference under WCAB rules, so the basis for sanctions was legally incorrect and the order was void.
From the decision · page 7Here, as explained above, applicant and/or their attorney were not required to attend the lien conference. Hence, one of the bases for the NIT, the alleged failure to appear, was legally incorrect rendering the NIT void. Because the NIT is void, the Order is void, and we will rescind it.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The hearing at which applicant's attorney failed to appear was a lien conference, not a hearing on the case in chief.
Favours Applicant prevailed
Under WCAB rules, applicant's attorney was not required to appear at a lien conference, so the basis for sanctions was legally incorrect.
From the decision · page 7Here, as explained above, applicant and/or their attorney were not required to attend the lien conference. Hence, one of the bases for the NIT, the alleged failure to appear, was legally incorrect rendering the NIT void. Because the NIT is void, the Order is void, and we will rescind it.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code § 5813; Cal. Code Regs., tit. 8, § 10421(b)(1)
Sanctions may be imposed for bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay, including failure to appear at a conference or trial without reasonable excuse or a pattern of such conduct.
The WCAB found that applicant's attorney's failure to appear at a lien conference was not sanctionable because appearance was not required under the rules.
From the decision · page 7seeking sanctions or upon the appeal board's own motion." (Lab. Code, § 5813(b).) In order for the WCJ to impose sanctions and costs, the alleged offending party or attorney must be given notice and an opportunity to be heard. (Cal. Code Regs., tit. 8, § 10421(a); see also Cal. Code Regs., tit. 8, § 10832(a)(3).) Bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay include actions or tactics that result from a willful failure to comply with a statutory or regulatory obligation, that result from a willful intent to disrupt or delay the proceedings of the Workers' Compensation Appeals Board, or that are done for an improper motive or are indisputably without merit. (Cal. Code Regs., tit. 8, § 10421(b).) One example of such conduct includes: "Failure to appear or appearing late at a conference or trial where a reasonable excuse is not offered or the offending party has demonstrated a pattern of such conduct." (Cal. Code Regs., tit. 8, § 10421(b)(1).)
Cal. Code Regs., tit. 8, § 10752(a)
Applicant or their attorney is only required to appear at hearings with respect to the case in chief; hearings concerning lien claims or cost petitions are not hearings with respect to the case in chief.
The WCAB found that the hearing in question was a lien conference, not a hearing on the case in chief, so applicant's attorney was not required to appear.
From the decision · page 5Thus, applicant or their attorney is only required to appear at hearings with respect to the case in chief. Any hearings concerning lien claims or cost petitions are not hearings with respect to the case in chief. If the WCJ wished for applicant or their attorney to appear, she was required to specifically order them to appear. Here, the WCJ did not order applicant or their attorney to appear, so no appearance was required.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's attorney was not required to appear at the lien conference under WCAB Rule 10752, as it was not a hearing on the case in chief.
From the decision · page 7Here, as explained above, applicant and/or their attorney were not required to attend the lien conference. Hence, one of the bases for the NIT, the alleged failure to appear, was legally incorrect rendering the NIT void. Because the NIT is void, the Order is void, and we will rescind it.
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About this page
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