What the panel ordered
Petition for reconsideration granted, order dismissing lien rescinded, and matter returned to trial level for further proceedings.
Lien claimant sought reconsideration of WCJ's order dismissing its lien for failure to appear at a lien conference.
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 NOI to dismiss was substantively defective and void because there was no evidence in the record to support the alleged non-appearance by petitioner, and due process requires notice and an opportunity to be heard before dismissal.
From the decision · page 3The NOI stated that the basis for dismissal was petitioner's "fail[ure] to appear for...conference/hearing on 09/26/2023"; however, upon review, there is nothing in the record to support this statement. The only evidence related to the September 26, 2023 lien conference consists of the Minutes of Hearing (MOH) issued that day; however, nowhere in the MOH did the WCJ note the alleged non-appearance by petitioner (or its representative). (Minutes of Hearing (MOH), September 26, 2023.) Absent an evidentiary basis for the NOI, the NOI was substantively defective and void ab initio, or from the start. Because the NOI was invalid, so was the resultant Order Dismissing.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
There was nothing in the record to support the statement that petitioner failed to appear at the September 26, 2023 lien conference.
Favours Applicant prevailed
Without evidence of non-appearance, the NOI to dismiss was void and so was the resultant Order Dismissing.
From the decision · page 3The NOI stated that the basis for dismissal was petitioner's "fail[ure] to appear for...conference/hearing on 09/26/2023"; however, upon review, there is nothing in the record to support this statement. The only evidence related to the September 26, 2023 lien conference consists of the Minutes of Hearing (MOH) issued that day; however, nowhere in the MOH did the WCJ note the alleged non-appearance by petitioner (or its representative). (Minutes of Hearing (MOH), September 26, 2023.) Absent an evidentiary basis for the NOI, the NOI was substantively defective and void ab initio, or from the start. Because the NOI was invalid, so was the resultant Order Dismissing.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, §§ 10832, 10875(b), 10888
Before issuing an Order dismissing a lien, the WCAB must issue a Notice of Intention to Dismiss that provides at least 10 days for the lien claimant to respond, and the NOI must clearly state the reason(s) for dismissal, supported by evidence.
The NOI was substantively defective and void because it was not supported by evidence of non-appearance, violating due process.
From the decision · page 3The NOI stated that the basis for dismissal was petitioner's "fail[ure] to appear for...conference/hearing on 09/26/2023"; however, upon review, there is nothing in the record to support this statement. The only evidence related to the September 26, 2023 lien conference consists of the Minutes of Hearing (MOH) issued that day; however, nowhere in the MOH did the WCJ note the alleged non-appearance by petitioner (or its representative). (Minutes of Hearing (MOH), September 26, 2023.) Absent an evidentiary basis for the NOI, the NOI was substantively defective and void ab initio, or from the start. Because the NOI was invalid, so was the resultant Order Dismissing.
What proof carried it
The evidence the panel weighed, by kind.
No evidence in the record supported the alleged non-appearance by petitioner at the lien conference; the Minutes of Hearing did not note non-appearance.
From the decision · page 3The NOI stated that the basis for dismissal was petitioner's "fail[ure] to appear for...conference/hearing on 09/26/2023"; however, upon review, there is nothing in the record to support this statement. The only evidence related to the September 26, 2023 lien conference consists of the Minutes of Hearing (MOH) issued that day; however, nowhere in the MOH did the WCJ note the alleged non-appearance by petitioner (or its representative). (Minutes of Hearing (MOH), September 26, 2023.) Absent an evidentiary basis for the NOI, the NOI was substantively defective and void ab initio, or from the start. Because the NOI was invalid, so was the resultant Order Dismissing.
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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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