What the panel treated as outcome-determinative, and which side it favoured.
Applicant was likely homeless and thus unlikely properly served with the Order.
Favours Applicant prevailed
Lack of proper service denied applicant due process, supporting rescission of the order.
From the decision · page 3Finally, we reiterate that all 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].) Since the WCJ acknowledged that applicant was likely homeless, it is
unlikely that she was properly served. If applicant did not receive the Order, applicant was not
provided with due process thereby providing another basis to find that the Order was void.
Applicant's attorney appeared at trial on November 16, 2023, despite applicant's absence.
Favours Applicant prevailed
This meant no violation of the appearance rule, making the dismissal order void ab initio.
From the decision · page 2FACTS
Applicant claimed industrial injury to her chest, arms, shoulder, and multiple body parts
when she tripped and fell while working as a laborer for defendant on January 31, 2022.
The case proceeded to trial on November 16, 2023. According to the minutes, applicant
did not appear at the trial, but her attorney was present. The WCJ issued the Order based on
applicant's failure to appear, which stated that it would become final absent timely objection and
that no additional order would follow. The Order indicated that applicant's attorney was "unable
to locate applicant. She may be homeless." The WCJ designated defendant's attorney to serve the
Order, and defendant filed a proof of service indicating that it served applicant and her attorney on
November 21, 2023. Applicant did not file an objection.
Applicant filed the Petition on February 21, 2024.
Order Dismissing Case was a 'self destruct' order that should have been served by WCAB, but was served by defendant.
Favours Applicant prevailed
Improper service provided a basis to find the order void.
From the decision · page 2DISCUSSION
WCAB Rule 10305(c) states that: "'Appear'" means to act on behalf of any party." Each
applicant and defendant shall appear or have an attorney or non-attorney representative appear at
all hearings pertaining to the case in chief. (Cal. Code Regs., tit. 8, § 10752(a).) A WCJ may issue
a notice of intention pursuant to WCAB Rule 10832 for failure to comply with this rule. (Cal.
Code Regs., tit. 8, § 10752(e), 10832.) Further, WCAB Rule 10832(e) states that "An order with
a clause rendering the order null and void if an objection is received is not a Notice of Intention
and must be served by the Workers' Compensation Appeals Board."
Here, applicant's attorney appeared at the trial on November 16, 2023, and therefore, there
was no violation of WCAB Rule 10752(a). As there was no basis for a notice to dismiss, the Order
is void ab initio. We also note that since the Order stated that it would be effective if there was no
timely objection and without a further order (a "self destruct" order), it should have been served
by the WCAB, and the WCJ's choice to designate service to defendant provides another basis for
our conclusion that the Order is void.