What the panel ordered
Petition for reconsideration dismissed; matter returned to trial level for hearing on petition to set aside dismissal order.
Lien claimant Cal State Interpreting petitioned for reconsideration of an order dismissing its lien for nonappearance at a lien conference. The WCAB reviewed the petition and the WCJ's report, and dismissed the petition, returning the matter to the trial level for consideration as a petition to set aside the dismissal order.
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 WCAB found that the petition for reconsideration should be dismissed and the matter returned to the trial level for hearing on the petition to set aside, so that lien claimant may be provided an opportunity to demonstrate why the dismissal order should be vacated.
From the decision · page 7Accordingly, we dismiss the Petition and return the matter to the WCJ for further proceedings consistent with this opinion. Upon return of this matter to the trial level, lien claimant's Petition shall be treated as a petition to set aside in the first instance, and the WCJ shall set a hearing, to allow lien claimant an opportunity to put on testimony or other evidence. After the WCJ issues a decision, any aggrieved person may then timely seek reconsideration of that decision.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Lien claimant alleges it did not receive notice of the lien conference or the Notice of Intention to Dismiss (NIT), and the record contains proof of service indicating service was made on January 8, 2025.
Favours neutral
Whether proper notice was provided is central to whether the dismissal order was valid and whether the lien claimant's due process rights were violated.
From the decision · page 3The NIT designated service to defendant. (Ibid.) Defendant's Proof of Service (POS) indicated that lien claimant and its hearing representative were served with the December 19, 2024 Minutes, as well as the December 26, 2024 NIT, on January 8, 2025. (1/8/25 POS.) On February 7, 2025, 30 days after the NIT was served, the WCJ issued the Order. In the Petition, lien claimant's representative alleges that it reviewed its files, and those of lien claimant, and found no record that either entity had received notice of the December 19, 2024 lien conference. (Petition, at p. 1.) It also alleges that it had found no record that they had received the NIT. (Ibid.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code § 5909
A petition for reconsideration is deemed denied unless acted upon within 60 days from the date a trial judge transmits a case to the appeals board. Service of the accompanying report constitutes notice of transmission.
The Board found that service of the Report and transmission of the case to the Appeals Board on March 7, 2025, provided the required notice and commenced the 60-day period.
From the decision · page 4Here, according to the proof of service for the Report and Recommendation by the workers' compensation administrative law judge, the Report was served on March 7, 2025, and the case was transmitted to the Appeals Board on March 7, 2025. Service of the Report and transmission of the case to the Appeals Board occurred on the same day. Thus, we conclude that the parties were provided with the notice of transmission required by section 5909(b)(1) because service of the Report in compliance with section 5909(b)(2) provided them with actual notice as to the commencement of the 60-day period on March 7, 2025.
Lab. Code § 5803
The Board has continuing jurisdiction to rescind, alter, or amend any order, decision, or award upon notice and after opportunity to be heard, good cause appearing therefor.
The Board cited its continuing jurisdiction to alter or amend orders, emphasizing the need for notice and opportunity to be heard.
From the decision · page 4II. "The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of [Division 4]... At any time, upon notice and after the opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor." (Lab. Code, § 5803.) Article XIV, section 4 of the California Constitution mandates that the workers' compensation law shall be carried out "...to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character..." Based on the constitutional mandate to accomplish substantial justice, the Board has a duty to develop an adequate record. (Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394-395 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1120 [63 Cal.Comp.Cases 261].) Moreover, "[t]he Board `is bound by the due process clause of the Fourteenth Amendment to the United States Constitution to give
Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd. (1994) 26 Cal.App.4th 789
A lien claimant must be served with notice of all hearings, and denial of a lien claim without an opportunity for a fair hearing is reversible per se.
The Board emphasized the due process right of lien claimants to notice and a fair hearing before dismissal of a lien.
From the decision · page 6A lien claimant has a due process right to participate in a workers' compensation hearing, and must be informed of the scope and purpose of any hearing that may affect its rights or liabilities. (Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd. (1994) 26 Cal.App.4th 789, 803, 805-806 [59 Cal.Comp.Cases 461].) A lien claimant must be served with notice of all hearings. (Id., at pp. 803-804; Fox v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th 1196, 1205-1206 [57 Cal.Comp.Cases 149]; See also, Lab. Code, § 5504; Cal. Code Regs., tit. 8, § 10750(a).) A lien claimant must be permitted to present relevant evidence, inspect documents, cross-examine witnesses, and make reasonable objections. (Beverly Hills Multispecialty Group, supra, 26 Cal.App.4th at p. 804.) The denial of a lien claim without the lien claimant having been provided with an opportunity for a fair hearing is reversible per se. (Id., at p. 806 ["if the denial of due process prevents a party from having a fair hearing, the denial of due process is reversible per se"].)
Cal. Code Regs., tit. 8, § 10888(c)
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 trial.
The Board noted that dismissal of a lien for nonappearance requires proof that the lien claimant was provided notice of the hearing.
From the decision · page 6WCAB Rule 10875 requires that all defendants and lien claimants must appear at all lien conferences. (Cal. Code Regs., tit. 8, § 10875.) When a lien claimant fails to appear, the WCJ may issue an NIT pursuant to WCAB Rule 10888, or may defer the lien. WCAB Rule 10888(c) states that "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 trial." (Cal. Code Regs., tit. 8, § 10888(c).)
What proof carried it
The evidence the panel weighed, by kind.
Proof of service indicated that lien claimant and its representative were served with the Minutes and NIT on January 8, 2025, but lien claimant alleges it did not receive notice of the lien conference or the NIT.
From the decision · page 3The NIT designated service to defendant. (Ibid.) Defendant's Proof of Service (POS) indicated that lien claimant and its hearing representative were served with the December 19, 2024 Minutes, as well as the December 26, 2024 NIT, on January 8, 2025. (1/8/25 POS.) On February 7, 2025, 30 days after the NIT was served, the WCJ issued the Order. In the Petition, lien claimant's representative alleges that it reviewed its files, and those of lien claimant, and found no record that either entity had received notice of the December 19, 2024 lien conference. (Petition, at p. 1.) It also alleges that it had found no record that they had received the NIT. (Ibid.)
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