What the panel ordered
Petition for reconsideration granted; Order dismissing cases ADJ1993155 and ADJ984342 vacated; Order denying petition to set aside dismissal rescinded; matter returned to WCJ for further proceedings.
Applicant sought reconsideration of the Order denying petition to set aside dismissal issued by the WCJ on September 12, 2024, which concluded the WCAB lacked jurisdiction to reopen the cases.
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 dismissal orders void ab initio due to lack of proper service and due process violations, thus it has jurisdiction to reopen the cases.
From the decision · page 6In verified pleadings, applicant stated - in essence - that she did not receive the notice of intent to dismiss the cases, which raises procedural due process concerns as to whether the required notice was received by applicant. 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].) Thus, the failure to serve applicant with the notice of intent is not only a violation of WCAB Rules; it constitutes a fundamental violation of applicant's due process rights, rendering the resulting July 30, 2019, Order dismissing cases ADJ1993155 and ADJ984342 void on its face.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was not served with the petition to dismiss at her current address, but at an outdated address in Tennessee.
Favours Applicant prevailed
This lack of proper service violated applicant's due process rights and rendered the dismissal orders void ab initio.
From the decision · page 6In verified pleadings, applicant stated - in essence - that she did not receive the notice of intent to dismiss the cases, which raises procedural due process concerns as to whether the required notice was received by applicant. 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].) Thus, the failure to serve applicant with the notice of intent is not only a violation of WCAB Rules; it constitutes a fundamental violation of applicant's due process rights, rendering the resulting July 30, 2019, Order dismissing cases ADJ1993155 and ADJ984342 void on its face.
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 Board acted within the 60-day period after transmission on October 8, 2024.
From the decision · page 3Former Labor Code section2 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, 5909(b)(1) and (2)
Parties must be notified of transmission of the case to the Appeals Board.
Service of the WCJ's Report on October 8, 2024, provided actual notice to the parties.
From the decision · page 4Section 5909(b)(1) requires that the parties and the Appeals Board be provided with notice of transmission of the case. Transmission of the case to the Appeals Board in EAMS provides notice to the Appeals Board. Thus, the requirement in subdivision (1) ensures that the parties are notified of the accurate date for the commencement of the 60-day period for the Appeals Board to act on a petition. Section 5909(b)(2) provides that service of the Report shall be notice of transmission.
San Bernardino Cmty. Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928
Due process requires notice and opportunity to be heard before dismissal of a case.
Failure to serve notice of intent to dismiss violated due process, rendering dismissal void.
From the decision · page 6In verified pleadings, applicant stated - in essence - that she did not receive the notice of intent to dismiss the cases, which raises procedural due process concerns as to whether the required notice was received by applicant. 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].) Thus, the failure to serve applicant with the notice of intent is not only a violation of WCAB Rules; it constitutes a fundamental violation of applicant's due process rights, rendering the resulting July 30, 2019, Order dismissing cases ADJ1993155 and ADJ984342 void on its face.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's verified pleadings stating she did not receive notice of intent to dismiss the cases, raising procedural due process concerns.
From the decision · page 6In verified pleadings, applicant stated - in essence - that she did not receive the notice of intent to dismiss the cases, which raises procedural due process concerns as to whether the required notice was received by applicant. 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].) Thus, the failure to serve applicant with the notice of intent is not only a violation of WCAB Rules; it constitutes a fundamental violation of applicant's due process rights, rendering the resulting July 30, 2019, Order dismissing cases ADJ1993155 and ADJ984342 void on its face.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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