ADJ16767852 · May 9, 2025

Applicant's attorney appeared at trial, so no violation of appearance rule; order was void ab initio and improperly served; applicant likely not properly served due to homelessness, denying due process; therefore, order rescinded.

From the decision · page 1Applicant seeks reconsideration of the "Order Dismissing Case for Failure to Appear" (Order) wherein the workers' compensation judge (WCJ) notified the parties that it would dismiss the case for applicant's failure to appear at the trial on November 16, 2023, if there was no objection within 10 days showing good cause. Applicant contends that she could not participate in her case initially as she was homeless but that she recently reached out to her attorney and is ready, willing, and able to participate now as she has found housing.

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.

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151

Due process requires proper service of orders to parties, especially when homelessness is involved.

Applicant likely not properly served due to homelessness, denying due process; order rescinded.

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.

Cal. Code Regs., tit. 8, 10752(a), 10832(e)

WCAB Rule 10305(c) defines 'Appear' as acting on behalf of any party.

Applicant's attorney appeared at trial, so no violation of appearance rule; order was void ab initio and improperly served.

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.

Applicant's attorney appeared at trial despite applicant's absence; Order indicated applicant may be homeless; Order was served by defendant, not WCAB; Applicant likely not properly served, denying due process.

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.