ADJ16477989 — California WCAB decision

What the panel ordered

Reconsideration granted, WCJ's November 1, 2024 decision rescinded, matter returned to WCJ for further proceedings and decision.

Petition for reconsideration of WCJ's Findings and Order of November 1, 2024, which found applicant did not demonstrate good cause to oppose Notice of Intention to Submit and was not employed by defendant on the date of injury; applicant sought reconsideration on grounds of lack of notice and employment status.

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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.

Jurisdiction / venueRemanded

The record did not show that applicant received adequate notice of the September 30, 2024 trial; defendant's proof of service was misleading and did not indicate the correct trial date, and no proper Notice of Hearing was timely served or admitted into evidence. Applicant was not given an opportunity to rebut the presumption of receipt or to be heard, violating due process.

From the decision · page 7Here, there are three reasons that the WCJ's November 1, 2024 F&O, including the finding that applicant did not make a showing of good cause to oppose the NIT to submit, and the order that the matter stands submitted, must be rescinded. First, the WCJ's decision must be based on "admitted evidence in the record" (Hamilton, supra, 66 Cal.Comp.Cases at p. 476), but the F&O entered here are not supported by an adequate evidentiary record. The available evidence appears to demonstrate that defendant did not provide adequate notice of hearing to applicant. Defendant was designated pursuant to WCAB Rule 10629 to serve the August 28, 2024 minutes, but its September 6, 2024 proof of service for those minutes stated, incorrectly, "Trial On 8/28/24," thus giving the false impression that a trial had already occurred on August 28, 2024. (9/6/24 POS; Cal. Code Regs., tit. 8, § 10629.) Defendant's proof of service contained no indication that the matter had been set for trial, nor any indication that the trial date was set for September 30, 2024. (Ibid.) In addition, defendant failed to timely serve and file a Notice of Hearing for the September 30, 2024 trial date. (Cal. Code Regs., tit. 8, § 10750.) Instead, nearly two weeks after the trial date had

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Defendant's proof of service for the August 28, 2024 minutes was misleading and did not indicate the correct trial date or that the matter was set for trial.

Favours Applicant prevailed

This failure meant applicant was not properly notified of the hearing, undermining due process and requiring remand.

From the decision · page 7Here, there are three reasons that the WCJ's November 1, 2024 F&O, including the finding that applicant did not make a showing of good cause to oppose the NIT to submit, and the order that the matter stands submitted, must be rescinded. First, the WCJ's decision must be based on "admitted evidence in the record" (Hamilton, supra, 66 Cal.Comp.Cases at p. 476), but the F&O entered here are not supported by an adequate evidentiary record. The available evidence appears to demonstrate that defendant did not provide adequate notice of hearing to applicant. Defendant was designated pursuant to WCAB Rule 10629 to serve the August 28, 2024 minutes, but its September 6, 2024 proof of service for those minutes stated, incorrectly, "Trial On 8/28/24," thus giving the false impression that a trial had already occurred on August 28, 2024. (9/6/24 POS; Cal. Code Regs., tit. 8, § 10629.) Defendant's proof of service contained no indication that the matter had been set for trial, nor any indication that the trial date was set for September 30, 2024. (Ibid.) In addition, defendant failed to timely serve and file a Notice of Hearing for the September 30, 2024 trial date. (Cal. Code Regs., tit. 8, § 10750.) Instead, nearly two weeks after the trial date had

No hearing was held and applicant was not given an opportunity to rebut the presumption of receipt or to be heard before the adverse decision.

Favours Applicant prevailed

This violated applicant's due process rights and required the WCJ's decision to be rescinded and the matter remanded.

From the decision · page 8The F&O must be rescinded, too, because no hearing was held prior to the issuance of the November 1, 2024 F&O, despite applicant's contention that neither he nor his attorney received the Notice of Hearing for the September 30, 2024 trial, resulting in their failure to appear at trial. (Petition, at pp. 4-5; 10/7/24 Objection to NIT, at pp. 1-2.) Applicant's counsel contends in his timely filed Objection to the NIT, that he did not receive notice of the trial date. (10/7/24 Objection to NIT.) In the Petition, applicant further contends that there is evidence which would demonstrate that defendant has a pattern and practice of failing to provide notice to applicant. (Petition, at pp. 4-5.) Determining an issue without giving the parties notice and an opportunity to be heard violates the parties' rights to due process. (See Gangwish v. Workers' Comp. Appeals Bd., supra, 89 Cal.App.4th at pp.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code § 5504

A notice of the time and place of hearing shall be served upon the applicant and all adverse parties.

Applicant must be served with notice of hearing; failure to do so violates due process.

From the decision · page 4II. Notices of Hearing are governed by section 5504 and WCAB Rule 10750. Section 5504 requires that, A notice of the time and place of hearing shall be served upon the applicant and all adverse parties and may be served either in the manner of service of a summons in a civil action or in the same manner as any notice that is authorized or required to be served under the provisions of this division.

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

Decisions must be based on admitted evidence in the record; WCJ must refer to evidence and provide reasons for determinations.

WCJ's decision was not supported by an adequate evidentiary record.

From the decision · page 6Decisions 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) (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." (Id., at p. 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[.]" (Id., at p. 476, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350].) "For the opinion on decision to be meaningful, the WCJ must refer with specificity to an adequate and completely developed record." (Ibid.)

Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803

If a party proves a letter was mailed, the trier of fact must find it was received unless there is believable contrary evidence; presumption is rebuttable.

Applicant must be given opportunity to rebut presumption of receipt of notice.

From the decision · page 7California Dairies, we explained, that, although a "letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail," that presumption is rebuttable. (Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803, 1817 (Appeals Bd. en banc), citations omitted.) "If the sending party thus produces evidence that a document was mailed, the burden shifts to the recipient to produce `believable contrary evidence' that it was not received. [Citations.] Once the recipient produces sufficient evidence showing non- receipt of the mailed item, "the presumption disappears" and the "trier of fact must then weigh the denial of receipt against the inference of receipt arising from proof of mailing and decide whether or not the letter was received. [citation.]" (Ibid.)

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Applicant prevailed

Defendant's proof of service for the August 28, 2024 minutes stated, incorrectly, 'Trial On 8/28/24,' giving the false impression a trial had already occurred, and did not indicate the matter was set for trial or the correct trial date.

From the decision · page 7Here, there are three reasons that the WCJ's November 1, 2024 F&O, including the finding that applicant did not make a showing of good cause to oppose the NIT to submit, and the order that the matter stands submitted, must be rescinded. First, the WCJ's decision must be based on "admitted evidence in the record" (Hamilton, supra, 66 Cal.Comp.Cases at p. 476), but the F&O entered here are not supported by an adequate evidentiary record. The available evidence appears to demonstrate that defendant did not provide adequate notice of hearing to applicant. Defendant was designated pursuant to WCAB Rule 10629 to serve the August 28, 2024 minutes, but its September 6, 2024 proof of service for those minutes stated, incorrectly, "Trial On 8/28/24," thus giving the false impression that a trial had already occurred on August 28, 2024. (9/6/24 POS; Cal. Code Regs., tit. 8, § 10629.) Defendant's proof of service contained no indication that the matter had been set for trial, nor any indication that the trial date was set for September 30, 2024. (Ibid.) In addition, defendant failed to timely serve and file a Notice of Hearing for the September 30, 2024 trial date. (Cal. Code Regs., tit. 8, § 10750.) Instead, nearly two weeks after the trial date had

Testimony and credibilityfavours Applicant prevailed

No hearing was held prior to the adverse decision, and applicant's counsel timely objected to the Notice of Intention to Submit, asserting non-receipt of notice of trial date.

From the decision · page 8The F&O must be rescinded, too, because no hearing was held prior to the issuance of the November 1, 2024 F&O, despite applicant's contention that neither he nor his attorney received the Notice of Hearing for the September 30, 2024 trial, resulting in their failure to appear at trial. (Petition, at pp. 4-5; 10/7/24 Objection to NIT, at pp. 1-2.) Applicant's counsel contends in his timely filed Objection to the NIT, that he did not receive notice of the trial date. (10/7/24 Objection to NIT.) In the Petition, applicant further contends that there is evidence which would demonstrate that defendant has a pattern and practice of failing to provide notice to applicant. (Petition, at pp. 4-5.) Determining an issue without giving the parties notice and an opportunity to be heard violates the parties' rights to due process. (See Gangwish v. Workers' Comp. Appeals Bd., supra, 89 Cal.App.4th at pp.

ADJ16477989 · January 17, 2025

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

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