What the panel ordered
The June 2, 2021 Order Dismissing Case is rescinded.
Applicant sought reconsideration of a June 2, 2021 Order Dismissing Case for failure to appear at trial; WCAB previously granted reconsideration to further study the issues and now issues its decision after reconsideration.
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 Dismissing Case was void because the Notice of Intention to Dismiss (NIT) was not validly issued as a separate document, referenced the wrong authority, and service was improperly delegated to defendant, violating due process and regulatory requirements.
From the decision · page 5(2002) 103 Cal.App.4th 485 [67 Cal.Comp.Cases 1273].) It is also well established that although a NIT may be provided alongside Minutes of Hearing, it is a separate and distinct document and should clearly indicate 1) that it is a NIT; 2) the parties involved; 3) the relevant dates and/or timelines; and 4) the basis for the NIT. Here, rather than issue a separate and proper NIT, the WCJ specified his intent to dismiss applicant's case and issue sanctions and costs within the May 3, 2021 Minutes of Hearing. As the NIT was not validly issued, the NIT, along with the resulting Order, are void ab initio. We note, however, that even if the NIT had been properly issued, the Order is fatally defective as it references WCAB Rule 10755 as authority for the dismissal, which applies mandatory settlement conferences, not trials. The WCJ also designated defendant for service in
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ did not issue a separate and proper Notice of Intention to Dismiss (NIT), but instead included intent to dismiss in the Minutes of Hearing.
Favours Applicant prevailed
A valid NIT is required for dismissal; failure to issue one voids the dismissal.
From the decision · page 5(2002) 103 Cal.App.4th 485 [67 Cal.Comp.Cases 1273].) It is also well established that although a NIT may be provided alongside Minutes of Hearing, it is a separate and distinct document and should clearly indicate 1) that it is a NIT; 2) the parties involved; 3) the relevant dates and/or timelines; and 4) the basis for the NIT. Here, rather than issue a separate and proper NIT, the WCJ specified his intent to dismiss applicant's case and issue sanctions and costs within the May 3, 2021 Minutes of Hearing. As the NIT was not validly issued, the NIT, along with the resulting Order, are void ab initio. We note, however, that even if the NIT had been properly issued, the Order is fatally defective as it references WCAB Rule 10755 as authority for the dismissal, which applies mandatory settlement conferences, not trials. The WCJ also designated defendant for service in
The Order referenced the wrong regulatory authority (Rule 10755, which applies to settlement conferences, not trials).
Favours Applicant prevailed
Citing the wrong authority made the dismissal order fatally defective.
From the decision · page 5(2002) 103 Cal.App.4th 485 [67 Cal.Comp.Cases 1273].) It is also well established that although a NIT may be provided alongside Minutes of Hearing, it is a separate and distinct document and should clearly indicate 1) that it is a NIT; 2) the parties involved; 3) the relevant dates and/or timelines; and 4) the basis for the NIT. Here, rather than issue a separate and proper NIT, the WCJ specified his intent to dismiss applicant's case and issue sanctions and costs within the May 3, 2021 Minutes of Hearing. As the NIT was not validly issued, the NIT, along with the resulting Order, are void ab initio. We note, however, that even if the NIT had been properly issued, the Order is fatally defective as it references WCAB Rule 10755 as authority for the dismissal, which applies mandatory settlement conferences, not trials. The WCJ also designated defendant for service in
Service of the Order was improperly delegated to defendant, contrary to WCAB Rule 10628.
Favours Applicant prevailed
Improper service procedure voided the final order.
From the decision · page 6contravention to WCAB Rule 10628, which states, in relevant part, that "[t]he Workers' Compensation Appeals Board shall not designate a party, or their attorney or agent of record, to serve any final order, decision or award." (Cal. Code Regs., tit. 8, § 10628(a).) Given that the Order was a final order, designated service is improper.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, § 10832; Bland v. Workers Comp. Appeals Bd. (1970) 3 Cal.3d 324; Marino v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 485
A Notice of Intention to Dismiss (NIT) must be a separate and distinct document, clearly indicating it is a NIT, the parties involved, relevant dates/timelines, and the basis for the NIT. There is strong public policy favoring disposition of cases on their merits rather than on procedural grounds.
The WCJ did not issue a proper NIT as required, so the dismissal was void.
From the decision · page 5(2002) 103 Cal.App.4th 485 [67 Cal.Comp.Cases 1273].) It is also well established that although a NIT may be provided alongside Minutes of Hearing, it is a separate and distinct document and should clearly indicate 1) that it is a NIT; 2) the parties involved; 3) the relevant dates and/or timelines; and 4) the basis for the NIT. Here, rather than issue a separate and proper NIT, the WCJ specified his intent to dismiss applicant's case and issue sanctions and costs within the May 3, 2021 Minutes of Hearing. As the NIT was not validly issued, the NIT, along with the resulting Order, are void ab initio. We note, however, that even if the NIT had been properly issued, the Order is fatally defective as it references WCAB Rule 10755 as authority for the dismissal, which applies mandatory settlement conferences, not trials. The WCJ also designated defendant for service in
Cal. Code Regs., tit. 8, § 10628(a)
The WCAB shall not designate a party, or their attorney or agent of record, to serve any final order, decision or award.
Service of the Order was improperly delegated to defendant, making the dismissal void.
From the decision · page 6contravention to WCAB Rule 10628, which states, in relevant part, that "[t]he Workers' Compensation Appeals Board shall not designate a party, or their attorney or agent of record, to serve any final order, decision or award." (Cal. Code Regs., tit. 8, § 10628(a).) Given that the Order was a final order, designated service is improper.
Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (en banc)
Decisions of the Appeals Board must be based on admitted evidence in the record, and the WCJ must refer to the evidence in the opinion on decision.
The WCJ failed to create a proper evidentiary record, violating due process.
From the decision · page 6Additionally, decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Bd. en banc).) As required by section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Hamilton, supra, at 475.) The purpose of this requirement is to enable "the parties, and the Board if reconsideration is sought, [to] ascertain the basis for the decision[.]" (Hamilton, supra, at 476, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal. 2d 753, 755 [33 Cal.Comp.Cases 350].)
Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 711-712 [57 Cal.Comp.Cases 230]
Due process requires a party be provided with reasonable notice and an opportunity to be heard.
Applicant was not provided proper notice, violating due process.
From the decision · page 6Given the above issues, upon receipt of applicant's Petition, the WCJ should have set the matter for hearing to create a proper record in accordance with Hamilton and to provide due process. It is well established that due process requires a party be provided with reasonable notice and an opportunity to be heard. (Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 711-712 [57 Cal.Comp.Cases 230].)
What proof carried it
The evidence the panel weighed, by kind.
The WCJ failed to create a record as to whether applicant and applicant's attorney were served with notice of hearing and whether they received notice.
From the decision · page 6Here, the WCJ failed to create a record as to whether the WCAB served applicant and applicant's attorney with copies of the notice of hearing and whether applicant and applicant's attorney received notice. With respect to the issue of sanctions and costs, there was also a lack of specificity as to the party or parties, the sanctions and costs were to be levied against.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
- If you are named in this decision and want this page removed, write to privacy@similarcase.com.