ADJ6941668 — California WCAB decision

What the panel ordered

Petition for Reconsideration of the March 29, 2024 Order Approving Compromise and Release is DENIED.

Defendant filed a Petition for Reconsideration on April 18, 2024 seeking to vacate an Order Approving Compromise and Release issued on March 29, 2024 by a workers compensation judge (WCJ).

Read the official decision →

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.

Reconsideration / removalDefendant prevailed

The defendant failed to rebut the presumption of receipt of notice under Evidence Code section 641 and did not appear at the scheduled hearing, resulting in denial of the petition for reconsideration based on lack of due process claim.

From the decision · page 1Defendant filed a Petition for Reconsideration (Petition) on April 18, 2024 seeking to vacate an Order Approving Compromise and Release (OACR) issued on March 29, 2024 by a workers compensation judge (WCJ). Defendant contends that they did not receive notice of the March 28, 2024 Mandatory Settlement Conference (MSC) and that the OACR was obtained through a denial of their due process rights.

The facts that decided it

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

The rules the panel named

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

Evidence Code section 641

Evidence Code section 641 presumes receipt of properly mailed documents.

The presumption applies as defendant was properly served at the correct address and did not rebut it.

From the decision · page 2Pursuant to Evidence Code section 641, "A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail." (See also Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803, 1817 (Appeals Board en banc); AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 212; Hagner v. United States (1932) 285 U.S. 427, 430 ["[t]he rule is well settled that proof that a letter properly directed was placed in a post office, creates a presumption that it reached its destination in usual time and was actually received by the person to whom it was addressed"]; Minniear v. Mt. San Antonio Community College District (1996) 61 Cal.Comp.Cases 1055, 1059 (Appeals Board en banc) [typical presumption affecting the burden of producing evidence "is the presumption that a mailed letter was received"].)

Due Process Clause of the 14th Amendment of the U.S. Constitution

Due Process Clause of the 14th Amendment requires a fair hearing with notice.

Defendant's claim of denial of due process was considered but rejected due to proper notice and failure to appear.

From the decision · page 5"Non-appearance of Shimon Kashani. OD Legal contacted Defendant at (310) 312-5617 at 10:55 a.m. leading to a voicemail box that was full. OACR to issue." On March 29, 2024, the undersigned WCJ reissued his order approving compromise and release (dependency). Aggrieved by the undersigned WCJ's decision, the Defendant filed the present petition for reconsideration. DISCUSSION: The due process clause of the 14th Amendment of the U.S. Constitution requires a WCJ to give parties a fair and open hearing. [Massachusetts Bonding & Ins. Co. v. Ind. Acc. Comm. (Himes) (1946) 11 Cal. Comp. Cases 144, 146.] In addition, the parties have a right to present evidence and witnesses to establish a claim or defense. [Evans v. Ind. Acc. Comm. (1945) 10 Cal. Comp. Cases 271, 274; Alvarez v. Crefitta, Inc. (2014) 2014 Cal. Wrk. Comp. P.D.

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Defendant prevailed

Proof of service of the Notice of Hearing and Order was properly mailed to defendant's correct address, creating a presumption of receipt under Evidence Code section 641.

From the decision · page 1Defendant contends that notice was not received for the March 28, 2024 MSC and claims to have been denied due process when the WCJ issued a March 29, 2024 OACR in response to submission of a Compromise and Release Agreement by the parties. In a December 5, 2023 Order Rescinding Order Approving Compromise and Release, however, the WCJ set the matter for the March 28, 2024 MSC. Proof of Service (POS) of the Notice of Hearing (NOH) was attached to the Order. Per the December 5, 2023 POS, both the Order and NOH were served upon defendant's address, which is listed as: P.O. Box 7385 Beverly Hills, California 90212. This is the same address listed for defendant in the Official Address Record (OAR). This is also the address a prior October 27, 2023 Notice of Intent (NOI) to Approve Compromise and Release was sent to previously. The

Documentary evidencefavours Defendant prevailed

Defendant provided no evidence to rebut the presumption of receipt of mailed notice.

From the decision · page 2Defendant provides no evidence to substantiate their claim that notice was not received, and the record does not contain evidence of a notice of change of mailing address. As explained in Alvarado v. Workmen's Comp. Appeals Bd. (1970) 35 Cal.Comp.Cases 370 (writ den.) and Castro v. Workers' Comp. Appeals Bd. (1996) 61 Cal.Comp.Cases 1460 (writ den.), mere allegation that a recipient did not receive a mailed document is insufficient to rebut the Evidence Code section 641 presumption. If the sending party produces evidence that a document was mailed, the burden shifts to the recipient to produce "believable contrary evidence" that it was not received. (Craig v. Brown & Root (2000) 84 Cal.App.4th 421-422, citing Slater v. Kehoe (1974) 38 Cal.App.3d 819, 832, fn. 12.) Once the recipient produces sufficient evidence showing non-receipt of the mailed item, "the presumption disappears" and the "trier of fact must then weigh the denial of receipt against the inference of receipt arising from proof of mailing and decide whether or not the letter was received." (Id.)

work activityfavours Defendant prevailed

Defendant failed to appear at the March 28, 2024 Mandatory Settlement Conference despite notice.

From the decision · page 5On March 28, 2024 at 8:30 a.m., the Applicant, by her attorney of record, Irina Rubin, appeared as well as the Department of Industrial Relations, by Thomas Routson, appearing for the Uninsured Employers Benefits Trust Fund. Taking the case off calendar, the undersigned WCJ wrote on the minutes of hearing the following minute reflection:

ADJ6941668 · June 13, 2024

What the panel ordered

What was disputed, and how it came out

The facts that decided it

Your case already resembles someone else’s. Find whose.

The rules the panel named

What proof carried it

About this page