ADJ10371478 — California WCAB decision

What the panel ordered

Petition for disqualification denied; petition for removal granted; WCJ's July 29, 2022 Order denying electronic hearing rescinded; case returned to trial level for further proceedings

Petition for disqualification filed by applicant's attorney; WCJ denied electronic hearing request; petition treated as petition for removal and granted by WCAB

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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.

Reconsideration / removalMixed

The WCJ's denial of the electronic hearing request was based on a misunderstanding of procedural rules, not bias; however, issuing the order without a hearing violated due process, warranting removal and rescinding the order.

From the decision · page 1On August 1, 2022, applicant's attorney (petitioner) filed a Petition for Disqualification (Petition) seeking to disqualify the workers' compensation administrative law judge (WCJ) from the proceeding, based upon the appearance of bias stemming from the issuance of an Order on July 29, 2022. By the Order, the WCJ denied petitioner's request to hold a hearing electronically, rather than in person, in order avoid the risk of exposing petitioner's father to COVID-19. (Order Denying Request for Electronic Hearing, July 29, 2022.)

The facts that decided it

The rules the panel named

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

Cal. Code Regs., tit. 8, §§ 10816, 10510, 10625

WCAB Rules 10816, 10510, 10625 govern requests for electronic hearings and proof of service requirements.

The WCJ denied the request based on non-compliance with these rules, but the Board found this was a misunderstanding of the rules.

From the decision · page 3The WCJ denies that her ruling was based upon bias. (Report, p. 3.) Instead, the WCJ explains that she denied the request because it failed to comply with the WCAB Rules of Practice and Procedure governing requests for electronic hearings, specifically, WCAB Rules 10816, 10510, and 10625. (Report, pp. 3-4.) WCAB Rule 10816 states: "If a party intends to appear electronically at any hearing, they shall file a petition showing good cause pursuant to rule 10510." (Cal. Code Regs., tit. 8, § 10816.) WCAB Rule 10510 requires, among other things, that "a request for action by the [WCAB]...shall be made by petition," and that "[a]ll petitions and answers shall be verified under penalty of perjury...." (Cal. Code Regs., tit. 8, § 10510.) WCAB Rule 10625 addresses proof of service, and states: "Proof of service" means a "dated and verified declaration identifying the document(s) served and the parties who were served, and stating that the service has been made and the method by which it has been made....If a document is served electronically,

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151

Due process requires a fair hearing including opportunity to present evidence and cross-examine witnesses.

The Board found that issuing the order without a hearing violated due process.

From the decision · page 5We do, however, agree with petitioner that the WCJ violated his right to due process by issuing the Order without a hearing. 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. (Rucker v. Workers' Comp. Appeals Bd. (Rucker) (2000) 82 Cal.App.4th 151, 157- 158 [65 Cal.Comp.Cases 805].) A fair hearing is "...one of `the rudiments of fair play' assured to every litigant...." (Id. at p. 158.) 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].)

Lab. Code, § 5310

Labor Code section 5310 allows the Board to remove a case to itself for substantial prejudice or irreparable harm.

The Board exercised discretion under this statute to grant removal due to due process violation.

From the decision · page 5The lack of a hearing prevented either party from exercising their right to call witnesses, cross-examine witnesses and/or introduce evidence in support of their positions, which is a deprivation of the constitutional guarantee of due process of law. (Rucker, supra, 82 Cal.App.4th at p. 157.) In order to address this due process issue, we will exercise our discretion under Labor Code section 5310 and remove the case to ourselves. (Lab. Code, § 5310.)

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Applicant prevailed

Petitioner's letter request for electronic hearing lacked formal verification and proper proof of service but was consented to by defense counsel.

From the decision · page 2On July 29, 2022, petitioner filed a letter petition addressed to the WCJ, stating: "ALL PARTIES JOINTLY REQUEST LIFE-SIZE BY AGREEMENT DUE TO HEALTH CONCERNS." (Report, p. 2.) Attached to the petition was a letter from Lisa Tsang, M.D., addressing the health of petitioner's father, as well as an email string with a date range of July 18- 19, 2022 between petitioner and defense counsel from the Law Offices of Park Guenthart, indicating the latter's consent to hold the expedited hearing via Lifesize. (Report, p. 2.) A proof of service attached to the letter petition stated that service was made to "WCAB by EAMS" and "Park by email." (Report, p. 4.)

Other evidencefavours Applicant prevailed

WCJ's denial was based on strict technical compliance with procedural rules despite no prejudice to defense.

From the decision · page 4Upon review, we conclude that the WCJ's decision to deny the request for an electronic hearing was based upon a misunderstanding of the WCAB Rules of Practice and Procedure, rather than bias. (Report, pp. 3-4.) Although petitioner's letter request for an electronic hearing lacked the formality typically associated with such a request under our rules, the WCJ was mistaken that anything less than strict compliance with these rules was grounds for denying the request. The WCAB Rules "serve the convenience of the tribunal and the [litigants] and facilitate the proceedings. They do not deprive the tribunal of the power to dispense with compliance when the purposes of justice require it, particularly when the violation is formal and does not substantially prejudice the other party." (Rubio v. Workers' Comp. Appeals Bd. (Rubio) (1985) 165 Cal.App.3d 196, 200 [50 Cal.Comp.Cases 160], italics added.) "[I]t is better to dispose of `...causes upon their substantial merits, rather than with strict regard to technical rules of procedure. The discretion of the court ought always to be exercised in such manner as will subserve rather than impede or defeat the ends of justice.' [Citation.]" (Carrara v. Carrara (1953) 121 Cal.App.2d 59, 63 (Carrara).)

ADJ10371478 · March 10, 2023

What the panel ordered

What was disputed, and how it came out

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