ADJ20384548 · September 4, 2026

The WCJ found the medical record needed development to determine injury AOE/COE, but the WCAB rescinded the findings and remanded for further proceedings due to lack of proper notice and representation issues.

From the decision · page 1Defendant seeks reconsideration of the Findings of Fact (Findings) issued on June 3, 2026 by the workers’ compensation administrative law judge (WCJ) found, in relevant part, that applicant, while employed on January 15, 2024 as a seasonal helper by defendant, claims to have sustained injury arising out of and in the course of employment (AOE/COE) to his left shoulder, and that the record was devoid of substantial medical evidence as to injury AOE/COE, and that the medical evidentiary record needs to be developed. The WCJ further found that applicant’s claim is not barred by the statute of limitations. Defendant contends that applicant’s failure to appear at either depositions, court hearings, or otherwise participate in his claim does not warrant development of the record, and that the findings of fact should be amended to reflect that applicant has failed to carry his burden of establishing injury AOE/COE. Defendant also asserts that the WCJ should have deferred a finding as to the statute of limitations defense without a finding as to either date of injury or injury. Applicant did not file an answer. The WCJ issued a Report and Recommendation on Petition for Reconsideration (Report) on July 9, 2026 recommending that defendant’s petition be granted and that the finding regarding statute of limitations be amended.

Applicant was not properly notified of attorney withdrawal and case status due to undeliverable mail and lack of contact.

Favours Applicant prevailed

This lack of notice led to improper relief of counsel and failure to develop the record properly, necessitating rescission and remand.

From the decision · page 7(Cal. Code Regs., tit. 8, § 10402(a); In re White & Bunch (1981) 46 Cal.Comp.Cases 810 (Appeals Board en banc); Cal. Code of Civil Proc. § 284.) Here, it is obvious from the existing record, that as early as February 2025, the applicant was no longer at the address of record listed on the Application filed by applicant’s counsel. The verified petition to be relieved as counsel filed by applicant’s attorney dated May 28, 2025 states that “[t]he relationship between Applicant and myself has irrevocably broken down, and I do not believe that I can provide further effective representation of Applicant at this time. I advised Applicant I wish to withdraw from his representation.” Unfortunately, however, service of this petition was on an undeliverable address for applicant. Thus, no notice has been afforded applicant at this juncture, as to counsel’s request to be relieved as his attorney, and thus the Order Relieving applicant as counsel of record as well as the ensuing notices, hearings, and Findings issued by the WCJ must also be rescinded as they similarly do not provide notice to applicant as to the status of his case. All parties are entitled to due process in a workers' compensation proceeding. (Beverly Hills Multispecialty Group, Inc. v. Workers’ Comp. Appeals Bd. (Pinkney) (1994) 26 Cal.App.4th 789 [59 Cal.Comp.Cases 461]; Abron v. Workmen’s Comp.

Applicant failed to appear at depositions, hearings, and trial, and mail was returned undeliverable.

Favours Defendant prevailed

This supported defendant's argument against record development but was outweighed by due process concerns.

From the decision · page 1Defendant seeks reconsideration of the Findings of Fact (Findings) issued on June 3, 2026 by the workers’ compensation administrative law judge (WCJ) found, in relevant part, that applicant, while employed on January 15, 2024 as a seasonal helper by defendant, claims to have sustained injury arising out of and in the course of employment (AOE/COE) to his left shoulder, and that the record was devoid of substantial medical evidence as to injury AOE/COE, and that the medical evidentiary record needs to be developed. The WCJ further found that applicant’s claim is not barred by the statute of limitations. Defendant contends that applicant’s failure to appear at either depositions, court hearings, or otherwise participate in his claim does not warrant development of the record, and that the findings of fact should be amended to reflect that applicant has failed to carry his burden of establishing injury AOE/COE. Defendant also asserts that the WCJ should have deferred a finding as to the statute of limitations defense without a finding as to either date of injury or injury. Applicant did not file an answer. The WCJ issued a Report and Recommendation on Petition for Reconsideration (Report) on July 9, 2026 recommending that defendant’s petition be granted and that the finding regarding statute of limitations be amended.

Cal. Code Regs., tit. 8, § 10402

WCAB Rule 10402 regarding substitution or dismissal of attorneys

The Board found that the attorney withdrawal was not properly noticed and thus the order relieving counsel was set aside.

From the decision · page 6(George) (1954) 125 Cal.App.2d 201, 203 [19 Cal.Comp.Cases 98].) Thus, once reconsideration has been granted, the Appeals Board has the full power to make new and different findings on issues presented for determination at the trial level, even with respect to issues not raised in the petition for reconsideration before it. In order for a substitution or dismissal of an attorney to be entered, it must be made upon the filing of consent of the party and the attorney, or upon the application of either the party or the attorney and a court order granting the application. (Cal. Code Regs., tit. 8, § 10402.) WCAB Rule 10402 advises that “Substitution or dismissal of attorneys must be made in the manner provided by Code of Civil Procedure sections 284, 285, and 286.” The Code of Civil Procedure section 284 states that:

Labor Code section 5909

Labor Code section 5909 regarding petitions for reconsideration timing and notice

The Board acted timely on the petition for reconsideration within the 60-day period required by the statute.

From the decision · page 5DISCUSSION I. Up through July 1, 2024, petitions for reconsideration were subject to former Labor Code section 5909 2, which provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) During the period from July 2, 2024 through June 30, 2026, petitions for reconsideration were subject to former 5909, which stated in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

Fortich v. Workers’ Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449

Due process requirement of notice reasonably calculated to apprise interested parties

The Board found that applicant was not properly notified of attorney withdrawal and hearings, violating due process.

From the decision · page 7(Cal. Code Regs., tit. 8, § 10402(a); In re White & Bunch (1981) 46 Cal.Comp.Cases 810 (Appeals Board en banc); Cal. Code of Civil Proc. § 284.) Here, it is obvious from the existing record, that as early as February 2025, the applicant was no longer at the address of record listed on the Application filed by applicant’s counsel. The verified petition to be relieved as counsel filed by applicant’s attorney dated May 28, 2025 states that “[t]he relationship between Applicant and myself has irrevocably broken down, and I do not believe that I can provide further effective representation of Applicant at this time. I advised Applicant I wish to withdraw from his representation.” Unfortunately, however, service of this petition was on an undeliverable address for applicant. Thus, no notice has been afforded applicant at this juncture, as to counsel’s request to be relieved as his attorney, and thus the Order Relieving applicant as counsel of record as well as the ensuing notices, hearings, and Findings issued by the WCJ must also be rescinded as they similarly do not provide notice to applicant as to the status of his case. All parties are entitled to due process in a workers' compensation proceeding. (Beverly Hills Multispecialty Group, Inc. v. Workers’ Comp. Appeals Bd. (Pinkney) (1994) 26 Cal.App.4th 789 [59 Cal.Comp.Cases 461]; Abron v. Workmen’s Comp.

Applicant's failure to appear at depositions, hearings, and trial, and returned mail indicating lack of proper notice

From the decision · page 1Defendant seeks reconsideration of the Findings of Fact (Findings) issued on June 3, 2026 by the workers’ compensation administrative law judge (WCJ) found, in relevant part, that applicant, while employed on January 15, 2024 as a seasonal helper by defendant, claims to have sustained injury arising out of and in the course of employment (AOE/COE) to his left shoulder, and that the record was devoid of substantial medical evidence as to injury AOE/COE, and that the medical evidentiary record needs to be developed. The WCJ further found that applicant’s claim is not barred by the statute of limitations. Defendant contends that applicant’s failure to appear at either depositions, court hearings, or otherwise participate in his claim does not warrant development of the record, and that the findings of fact should be amended to reflect that applicant has failed to carry his burden of establishing injury AOE/COE. Defendant also asserts that the WCJ should have deferred a finding as to the statute of limitations defense without a finding as to either date of injury or injury. Applicant did not file an answer. The WCJ issued a Report and Recommendation on Petition for Reconsideration (Report) on July 9, 2026 recommending that defendant’s petition be granted and that the finding regarding statute of limitations be amended.

Lack of proper notice to applicant regarding attorney withdrawal and case status

From the decision · page 7(Cal. Code Regs., tit. 8, § 10402(a); In re White & Bunch (1981) 46 Cal.Comp.Cases 810 (Appeals Board en banc); Cal. Code of Civil Proc. § 284.) Here, it is obvious from the existing record, that as early as February 2025, the applicant was no longer at the address of record listed on the Application filed by applicant’s counsel. The verified petition to be relieved as counsel filed by applicant’s attorney dated May 28, 2025 states that “[t]he relationship between Applicant and myself has irrevocably broken down, and I do not believe that I can provide further effective representation of Applicant at this time. I advised Applicant I wish to withdraw from his representation.” Unfortunately, however, service of this petition was on an undeliverable address for applicant. Thus, no notice has been afforded applicant at this juncture, as to counsel’s request to be relieved as his attorney, and thus the Order Relieving applicant as counsel of record as well as the ensuing notices, hearings, and Findings issued by the WCJ must also be rescinded as they similarly do not provide notice to applicant as to the status of his case. All parties are entitled to due process in a workers' compensation proceeding. (Beverly Hills Multispecialty Group, Inc. v. Workers’ Comp. Appeals Bd. (Pinkney) (1994) 26 Cal.App.4th 789 [59 Cal.Comp.Cases 461]; Abron v. Workmen’s Comp.