What the panel ordered
Petition for Reconsideration is denied by the WCAB panel.
Defendant petitioned for reconsideration of the Findings and Award issued on 12/17/2021, challenging denial of its request to cross-examine applicant at an expedited hearing; petition was timely filed and considered by WCAB panel.
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.
Defendant did not subpoena or serve notice to applicant to appear at hearing, thus did not avail itself of cross-examination opportunity; no good cause for continuance found; defendant was not denied due process.
From the decision · page 3A review of EAMS reflects applicant filed a Declaration of Readiness (hereinafter referred to as "DOR") on 10/12/2021 identifying temporary disability as the issue and requesting an expedited hearing. Defendant did not file an Objection. The matter came on my expedited hearing calendar on 11/09/2021. Counsel for applicant appeared telephonically as did defense counsel. Applicant did not appear. There was no objection to the matter being held virtually. Defendant objected to the expedited hearing proceeding partly on lack of notice as to the particular period of temporary disability. Defendant also objected to the expedited hearing proceeding because it requested the opportunity to cross-examine applicant regarding medical treatment, employment subsequent to the date of injury, and income. Applicant was not present for the hearing. Defendant
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant did not subpoena or serve notice to applicant to appear at hearing, thus did not avail itself of cross-examination opportunity.
Favours Applicant prevailed
This lack of procedural action meant defendant was not denied due process and the petition for reconsideration was properly denied.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151
Due process guarantees the right to notice of hearing and a fair hearing including opportunity to cross-examine witnesses.
Defendant was not denied due process as it failed to subpoena or serve notice to applicant to appear at hearing, thus no cross-examination opportunity was lost.
From the decision · page 1All parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157§ 158 [65 Cal.Comp.Cases 805].) Due process guarantees all parties the right to notice of hearing and a fair hearing. (Rucker, supra, at 157-158.) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (Rucker, supra, at 157- 158, citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21].) However, there is no record that defendant subpoenaed applicant or served her with notice to appear at trial as a witness pursuant to Code of Civil Procedure section 1987. (Code Civ. Proc., § 1987; see also Cal. Code Regs., tit. 8, § 10642.) Therefore, defendant did not avail itself of the opportunity to cross-examine her.
California Code of Regulations section 10752
A party may appear at trial by attorney without the represented applicant's presence unless subpoenaed or noticed to appear.
Applicant's absence at expedited hearing was proper as defendant did not subpoena or serve notice to appear.
What proof carried it
The evidence the panel weighed, by kind.
Defendant failed to subpoena or serve notice to applicant to appear at hearing, limiting its ability to cross-examine applicant.
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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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