What the panel ordered
Petition for Reconsideration granted; Order of Dismissal of Mednet Inc.'s lien is vacated.
Lien claimant Mednet Inc. petitioned for reconsideration of an Order of Dismissal of its lien, which the WCJ had issued for alleged non-appearance at a lien conference. 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.
The Order of Dismissal was void because there was no proper notice of intention to dismiss as required by WCAB Rule 10888, and no evidence that lien claimant had notice of the hearing or failed to appear. The order also used improper 'self-destruct' language and lacked a proper evidentiary record.
From the decision · page 5Therefore, the Order of Dismissal is void because there was no proper notice of intention to dismiss as required by WCAB Rule 10888, subdivisions (c) and (e). It is also void because the language of the Order is not based on a proper evidentiary record.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Order of Dismissal did not specify when notice of hearing was served and did not show that lien claimant received notice; no evidence that lien claimant failed to appear; no proper notice of intention to dismiss issued.
Favours Applicant prevailed
These procedural defects rendered the Order of Dismissal void and required it to be vacated.
From the decision · page 5Therefore, the Order of Dismissal is void because there was no proper notice of intention to dismiss as required by WCAB Rule 10888, subdivisions (c) and (e). It is also void because the language of the Order is not based on a proper evidentiary record.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, §§ 10832, 10888
Before dismissing a lien for non-appearance, the WCAB or WCJ must issue a Notice of Intention to Dismiss consistent with rule 10832, providing at least 10 days for response, and dismissal for failure to appear requires proof that the lien claimant was provided notice of the hearing.
The Order of Dismissal was void because it did not comply with these notice and procedural requirements.
From the decision · page 4II. The Order of Dismissal is void by operation of law as explained below. First, the WCJ may issue a notice of intention for any proper purpose, including allowing, disallowing or dismissing a lien. (Cal. Code Regs., tit. 8, § 10832 (a)(1).) Specifically, the Appeals Board or a workers' compensation judge may order a lien dismissed for non-appearance by the lien claimant. (Cal. Code Regs., tit. 8, § 10888(a).) Before issuing an Order dismissing a lien, the Appeals Board or WCJ "shall issue a Notice of Intention to Dismiss the lien claim consistent with rule 10832 that provides at least 10 days for the lien claimant to file and serve a response showing good cause why an Order dismissing the lien should not issue." (Cal. Code Regs., tit. 8, § 10888(e).) Additionally, a "dismissal for failure to appear at a hearing shall only issue if the lien claimant was provided with notice of the lien conference or lien trial." (Cal. Code Regs., tit. 8, § 10888(c).) However, an "order with a clause rendering the order null and void if an objection is received is not a Notice of Intention...." (Cal.
What proof carried it
The evidence the panel weighed, by kind.
No evidence that lien claimant received notice of the hearing or failed to appear; no proper notice of intention to dismiss; lack of evidentiary record.
From the decision · page 5In fact, there is no evidence to demonstrate that lien claimant had notice of the hearing and no evidence to demonstrate that lien claimant failed to appear, and there must be a complete record for our review of the case. (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 475 (Appeals Bd. en banc) ["[A] proper record enables any reviewing tribunal, be it the Board on reconsideration or a court on further appeal, to understand the basis for the decision."].)
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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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