What the panel ordered
Petition for Reconsideration dismissed for defective service and failure to cure; admonishment issued to petitioner for false statements and misrepresentations.
Petition for Reconsideration filed by lien claimant Alan Moelleken, M.D./Spine & Ortho Center on June 29, 2021, considered with the WCJ report and record.
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.
Petition for Reconsideration was dismissed because it was filed without proof of service on all adverse parties as required by law, and the petitioner failed to cure the defective service despite being alerted to it.
From the decision · page 1The Petition for Reconsideration was filed without proof of service on all adverse parties as required by Labor Code1 section 5905. (Lab. Code, § 5905; see also Cal. Code Regs., tit. 8, § 10940(c); 10625.) Petitioner failed to serve applicant, applicant's attorney, and the other lien claimants on the Official Address Record, including Duran Interpreting Services, which provided services during the disputed treatment of applicant by petitioner.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Petition for Reconsideration was filed without proof of service on all adverse parties as required by Labor Code section 5905.
Favours Defendant prevailed
This omission is a substantive defect that denies a fundamental right and justifies dismissal of the petition.
From the decision · page 1The Petition for Reconsideration was filed without proof of service on all adverse parties as required by Labor Code1 section 5905. (Lab. Code, § 5905; see also Cal. Code Regs., tit. 8, § 10940(c); 10625.) Petitioner failed to serve applicant, applicant's attorney, and the other lien claimants on the Official Address Record, including Duran Interpreting Services, which provided services during the disputed treatment of applicant by petitioner.
Petitioner failed to cure the defective service despite being alerted by defendant's answer and the WCJ's Report.
Favours Defendant prevailed
Failure to cure the defective service after notice supports dismissal of the petition.
From the decision · page 1"The failure to serve documents in a WCAB proceeding in the manner required by statute or the board's regulations is not a `mere irregularity' but rather an omission of substance which denies a fundamental right." (Hartford Acc. & Indemnity Co. v. Workers' Comp. Appeals Bd. (Phillips) (1978) 86 Cal.App.3d 1, 3 [43 Cal.Comp.Cases 1193].) Dismissal is appropriate for the failure to serve a real party in interest. (M.C.A., Inc. v. Workers' Comp. Appeals Bd. (Stott) (1981) 46 Cal.Comp.Cases 621 (writ den.); Fisher v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 517 (writ den.).) Petitioner did not cure the defective service although he was alerted to it by defendant's answer and the WCJ's Report.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Hartford Acc. & Indemnity Co. v. Workers' Comp. Appeals Bd. (Phillips) (1978) 86 Cal.App.3d 1
Failure to serve documents in a WCAB proceeding as required by statute or regulations is an omission of substance denying a fundamental right, warranting dismissal.
Dismissal is appropriate for failure to serve a real party in interest.
From the decision · page 1"The failure to serve documents in a WCAB proceeding in the manner required by statute or the board's regulations is not a `mere irregularity' but rather an omission of substance which denies a fundamental right." (Hartford Acc. & Indemnity Co. v. Workers' Comp. Appeals Bd. (Phillips) (1978) 86 Cal.App.3d 1, 3 [43 Cal.Comp.Cases 1193].) Dismissal is appropriate for the failure to serve a real party in interest. (M.C.A., Inc. v. Workers' Comp. Appeals Bd. (Stott) (1981) 46 Cal.Comp.Cases 621 (writ den.); Fisher v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 517 (writ den.).) Petitioner did not cure the defective service although he was alerted to it by defendant's answer and the WCJ's Report.
What proof carried it
The evidence the panel weighed, by kind.
Petition for Reconsideration was filed without proof of service on all adverse parties including applicant, applicant's attorney, and other lien claimants on the Official Address Record.
From the decision · page 1The Petition for Reconsideration was filed without proof of service on all adverse parties as required by Labor Code1 section 5905. (Lab. Code, § 5905; see also Cal. Code Regs., tit. 8, § 10940(c); 10625.) Petitioner failed to serve applicant, applicant's attorney, and the other lien claimants on the Official Address Record, including Duran Interpreting Services, which provided services during the disputed treatment of applicant by petitioner.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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