ADJ4433060 — California WCAB decision

What the panel ordered

Findings and Award issued June 10, 2021, rescinded; matter returned to trial level for further proceedings.

Petition for reconsideration filed by defendant; Appeals Board granted reconsideration to study issues further; decision after reconsideration issued rescinding the Findings and Award and returning matter to trial level due to incomplete record.

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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 / venueApplicant prevailed

The record was incomplete, lacking summary of evidence, minutes, and proper identification of exhibits, preventing meaningful review. Due process requires a complete record for substantial justice. The decision was rescinded and the matter returned to trial level for further proceedings.

From the decision · page 4While the WCA issued the Report on August 4, 2021, filing of the arbitration file in EAMS was not completed as required by WCAB Rule 10995, as the record does not include a summary of evidence and/or minutes of the arbitration proceedings, as well as proper identification of the evidence and exhibits.

Reconsideration / removal

The facts that decided it

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

Defendant filed a timely petition for reconsideration on June 30, 2021.

Favours Applicant prevailed

Established the right to reconsideration and triggered the 60-day period for the Board to act.

From the decision · page 3In this case, the WCA issued the Findings and Award on June 10, 2021, and defendant filed a timely petition on June 30, 2021. However, the first notice to the Appeals Board of the Petition was on August 3, 2022. Due to this lack of notice, the Appeals Board failed to act on the petition within 60 days, through no fault of the parties. Therefore, considering that defendant filed a timely petition and that the Appeals Board's failure to act on that petition was in error, we find that our time to act on defendant's petition was equitably tolled until 60 days after August 3, 2022.

Appeals Board did not receive notice of the petition until August 3, 2022, beyond the 60-day period.

Favours Applicant prevailed

The lack of notice caused the Board to fail to act within the statutory period, depriving defendant of due process.

From the decision · page 3In this case, the WCA issued the Findings and Award on June 10, 2021, and defendant filed a timely petition on June 30, 2021. However, the first notice to the Appeals Board of the Petition was on August 3, 2022. Due to this lack of notice, the Appeals Board failed to act on the petition within 60 days, through no fault of the parties. Therefore, considering that defendant filed a timely petition and that the Appeals Board's failure to act on that petition was in error, we find that our time to act on defendant's petition was equitably tolled until 60 days after August 3, 2022.

The arbitration record was incomplete, lacking summary of evidence, minutes, and proper identification of exhibits.

Favours Applicant prevailed

An incomplete record prevented meaningful review and due process, requiring rescission and remand.

From the decision · page 4While the WCA issued the Report on August 4, 2021, filing of the arbitration file in EAMS was not completed as required by WCAB Rule 10995, as the record does not include a summary of evidence and/or minutes of the arbitration proceedings, as well as proper identification of the evidence and exhibits.

The rules the panel named

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

Labor Code section 5909

The Board must act on petitions for reconsideration within 60 days, but this time is tolled if the petition is not received due to circumstances beyond the party's control.

From the decision · page 2I. Labor Code section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) However, "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley, supra, 7 Cal.App.4th at p. 1108; see Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 635 fn. 22 [70 Cal.Comp.Cases 312] ["irregularity which deprives reconsideration under the statutory scheme denies due process"].) In Shipley, applicant sought a writ of review of a decision of the Appeals Board denying his petition for reconsideration by operation of law (Lab. Code, § 5909).

Shipley v. Workers' Comp. Appeals Bd. (7 Cal.App.4th 1103)

Due process requires meaningful consideration of the merits with a well-reasoned decision based on the evidentiary record and relevant law.

The Board's failure to act on the petition deprived the defendant of due process, requiring tolling of the 60-day period and reconsideration on the merits.

From the decision · page 2The Court there granted a writ of review, stating that while the "language [section 5909] appears mandatory and jurisdictional, the time periods must be based on a presumption that a claimant's file will be available to the board; any other result deprives a claimant of due process and the right to a review by the board." (Shipley, supra, 7 Cal.App.4th at pp. 1107-1108, italics added.) In Shipley, the Court of Appeal reversed the Appeals Board, holding that the time to act on the petition was tolled during the period the file was misplaced and unavailable to the Appeals Board. (Shipley, supra, 7 Cal.App.4th at p. 1007.) The Court emphasized that "Shipley's file was lost or misplaced through no fault of his own and due to circumstances entirely beyond his control." (Shipley, supra, 7 Cal.App.4th at p.

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

An arbitrator's decision must be based on admitted evidence and supported by substantial evidence, with an adequate and complete record for review.

The incomplete record prevented meaningful review and due process, requiring rescission and remand for further proceedings.

From the decision · page 4As with a workers' compensation administrative law judge (WCJ), an arbitrator's decision must be based on admitted evidence and must be supported by substantial evidence. (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) An adequate and complete record is necessary to understand the basis for the WCJ's decision. (Lab. Code, § 5313; see also Cal. Code Regs., tit. 8, § 10566.) "It is the responsibility of the parties and the WCJ to ensure that the record is complete when a case is submitted for decision on the record. At a minimum, the record must contain, in properly organized form, the issues submitted for decision, the admissions and stipulations of the parties, and admitted evidence." (Hamilton, supra, 66 Cal.Comp.Cases at p. 475.) The WCJ's decision must "set[] forth clearly and concisely the reasons for the decision made on each issue, and the evidence relied on," so that "the parties, and the Board if reconsideration is sought, [can] ascertain the basis for the decision[.]... For the opinion on decision to be meaningful, the WCJ must refer with specificity to an adequate and completely developed record." (Id. at p. 476 (citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal. 2d 753, 755 [33 Cal.Comp.Cases 350] [a full and complete record allows for a

ADJ4433060 · August 28, 2024

What the panel ordered

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The facts that decided it

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