ADJ9737864 — California WCAB decision

What the panel ordered

Findings and Orders issued on June 12, 2019, are rescinded and substituted to strike the finding and orders imposing sanctions and costs; lien claim denied; lien claimant to take nothing further.

Petition for Reconsideration filed by lien claimant Citywide Scanning Service, Inc. challenging the Findings and Orders issued on June 12, 2019, which denied the lien claim and imposed sanctions.

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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.

LiensDefendant prevailed

Lien claimant failed to provide an exhibit list as required by Labor Code section 5502(d)(3), resulting in exclusion of evidence and failure to meet burden of proof; sanctions imposed without proper notice were rescinded.

From the decision · page 1Lien claimant Citywide Scanning Service, Inc., seeks reconsideration of the Findings and Orders (F&O) issued on June 12, 2019, wherein the workers' compensation administrative law judge (WCJ) found as relevant that (1) lien claimant failed to establish its lien claim because it failed to offer admissible evidence in support thereof; and (2) lien claimant and its counsel, Amy Cosio, engaged in bad faith and frivolous actions designed solely to harass defendant by proceeding to trial in disregard of court rules and procedures, justifying Labor Code section 58131 sanctions and costs.

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Defendant prevailed

Lien claimant failed to provide an exhibit list in the pretrial conference statement as required by Labor Code section 5502(d)(3), leading to exclusion of exhibits.

From the decision · page 2The WCJ entered the following into the minutes: LET THE MINUTES REFLECT that Lien Claimant's Exhibits 1 through 7 will not be admitted into the record based upon the objection by defendant of Labor Code Section 5502(d) (3) and the lack of a response by lien claimant; Lien Claimant's Exhibit 8 will be admitted into the record as evidence of service in response to objection by defendant that they were not previously served. (Id., p. 3:22-24.)

Documentary evidencefavours Defendant prevailed

Lien claimant's representative did not provide evidence of mistake or excusable neglect to justify failure to disclose exhibits.

From the decision · page 3Here, the record does not contain a declaration of lien claimant's representative attesting to any mistake, inadvertence, surprise, or excusable neglect that could demonstrate good cause to excuse lien claimant's failure to disclose evidence by way of the exhibit list. In the absence of such a declaration, we are unable to discern grounds to grant lien claimant relief from its failure to provide the exhibit list and the WCJ's consequent decision to sustain defendant's section 5502(d)(3) objection.

Other evidencefavours Applicant prevailed

Sanctions were imposed without notice or opportunity to be heard, violating due process rights.

From the decision · page 4Here, the record reveals that the WCJ imposed sanctions and costs upon lien claimant without issuing a Notice of Intent or otherwise providing notice of the specific grounds upon which the court sought sanctions, reasoning that because defendant raised the issue of sanctions in the pretrial conference statement, lien claimant had adequate notice of the issue. (Report, p. 3.) However, we are unaware of any authority allowing the WCJ to impose sanctions without requisite notice on the grounds that the issue was raised separately by a party. We therefore conclude that the WCJ imposed sanctions and costs without notice and an opportunity to be heard and in violation of lien claimant's right of due process.

ADJ9737864 · April 22, 2022

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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