ADJ1848273 — California WCAB decision

What the panel ordered

Petition for reconsideration granted; order dismissing lien in ADJ1848273 rescinded and matter returned to WCJ for further proceedings.

Lien claimant, through its representative Billing Dynamics, sought reconsideration of the WCJ's August 30, 2023 order dismissing the lien of Alan Moelleken, M.D., with prejudice in ADJ1848273. The WCAB granted reconsideration and rescinded the dismissal order.

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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.

LiensApplicant prevailed

The WCJ dismissed the lien in ADJ1848273 based on non-appearance at a lien conference in ADJ1686013, but the Notice of Intention to Dismiss was not properly served on the lien claimant's representative, raising due process concerns. The Board found that the dismissal was procedurally improper and rescinded the order.

From the decision · page 5"The Workers' Compensation Appeals Board shall serve... all parties of record with any final order, decision or award issued by it on a disputed issue after submission...." (Cal. Code Regs., tit. 8, § 10628(a).) Here, lien claimant's DOR requesting a lien conference was filed in case number ADJ1686013. The Notice of Intention based on lien claimant's representative's failure to appear at the lien conference in case number ADJ1686013 issued only in case number ADJ1848273, which was not the subject of the DOR. Contrary to WCAB Rules regarding filing and service of documents, lien claimant's representative was never served with the Notice of Intention, as it was only served on Alan Moelleken, M.D., CNA Casualty of California, and Harrison Eichenberg. (August 3, 2023 Notice of Intention, p. 1; Cal. Code Regs., tit. 8, § 10610, 10615, 10625, 10628.)

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, 157-158 [65 Cal.Comp.Cases 805]

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.

The Board found that failure to serve the lien claimant's representative with the Notice of Intention to Dismiss violated due process rights.

From the decision · page 5All 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].) 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. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; 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]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].)

Fox v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th 1196, 1205 [57 Cal.Comp.Cases 149]

Lien claimants may seek relief from the consequences of a failure to appear by utilizing a procedure substantially similar to Code of Civil Procedure section 473.

The Board applied this standard to allow reconsideration and relief from the dismissal order.

From the decision · page 6In the Fox case, as here, a lien claimant's case was dismissed due to his failure to appear. (Fox, supra, at 1206.) The court of appeal held "that lien claimants may seek relief from the consequences of a failure to appear by utilizing a procedure substantially similar to Code of Civil Procedure section 473." (Fox, supra, at 1205; Code Civ. Proc., § 473; see Lab. Code, § 5506.) Code of Civil Procedure section 473, subd. (b) provides, in relevant part: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Code Civ. Proc., § 473(b).)

ADJ1848273 · November 20, 2023

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