ADJ10979852 · December 17, 2024

The order relieving counsel was interlocutory and not a final order, so reconsideration was improper. However, removal was warranted because the WCJ granted the petition to be relieved without an evidentiary hearing or notice of intention, violating applicant's due process rights.

From the decision · page 7Here, the WCJ granted applicant's attorney's Petition to be Relieved without issuing an NIT, and without providing applicant with the opportunity to offer evidence in rebuttal or to otherwise object to his attorney's request to be relieved. (9/25/24 MOH; 10/2/24 Order Relieving Counsel.) The WCJ therefore decided the matter in violation of applicant's right to due process and a fair hearing, which caused applicant substantial prejudice and irreparable harm that reconsideration cannot cure.

WCJ granted applicant's attorney's petition to be relieved without issuing a Notice of Intention or holding an evidentiary hearing.

Favours Applicant prevailed

This deprived applicant of due process and a fair hearing, warranting rescission of the order and remand for proper proceedings.

From the decision · page 7Here, the WCJ granted applicant's attorney's Petition to be Relieved without issuing an NIT, and without providing applicant with the opportunity to offer evidence in rebuttal or to otherwise object to his attorney's request to be relieved. (9/25/24 MOH; 10/2/24 Order Relieving Counsel.) The WCJ therefore decided the matter in violation of applicant's right to due process and a fair hearing, which caused applicant substantial prejudice and irreparable harm that reconsideration cannot cure.

Lab. Code §§ 5900(a), 5902, 5903; Rymer v. Hagler; Safeway Stores, Inc. v. WCAB; Kaiser Foundation Hospitals v. WCAB (Kramer); Maranian v. WCAB

A petition for reconsideration may only be taken from a final order, decision, or award; interlocutory procedural or evidentiary decisions are not final.

The order relieving counsel was interlocutory and not a final order, so reconsideration was dismissed.

From the decision · page 5(1989) 211 Cal.App.3d 1171, 1180 (Rymer); Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p. 1075 ["interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not `final'"]; Rymer, supra, at p. 1180 ["[t]he term [`final'] does not include intermediate procedural orders or discovery orders"]; Kramer, supra, at p. 45 ["[t]he term [`final'] does not include intermediate procedural orders"].) Such interlocutory decisions include, but are not limited to, pre-trial orders regarding evidence, discovery, trial setting, venue, or similar issues.

Cal. Code Regs., tit. 8, § 10955(a); Cortez v. WCAB; Kleemann v. WCAB

Removal is granted only if substantial prejudice or irreparable harm will result and reconsideration is not an adequate remedy.

Removal was granted because applicant suffered substantial prejudice and irreparable harm due to lack of due process.

From the decision · page 5III. Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (Cortez) (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (Kleemann) (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) The petitioner must also demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) 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. (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.) As stated by the Supreme Court of California in Carstens v. Pillsbury (1916) 172 Cal. 572, "the commission...must find facts and declare and enforce rights and liabilities, - in short, it acts as a court, and it must

Rucker v. WCAB; Carstens v. Pillsbury; Gangwish v. WCAB; Lab. Code § 5313

Parties have a fundamental right to due process and a fair hearing, including notice and opportunity to be heard.

Applicant was denied due process when the WCJ granted the petition to be relieved without notice or opportunity to be heard.

From the decision · page 6observe the mandate of the constitution of the United States that this cannot be done except after due process of law." (Id. at p. 577.) 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. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584].)

Lab. Code § 5313; Hamilton v. Lockheed Corp. (en banc); Lamb v. WCAB; Garza v. WCAB; LeVesque v. WCAB

WCJ must make findings based on admitted evidence in the record and provide reasons for determinations.

No evidentiary record was created regarding the petition to be relieved, so the order was rescinded and remanded for hearing.

From the decision · page 6Section 5313 requires the WCJ to "make and file findings upon all facts involved in the controversy and [make and file] an award, order, or decision stating the determination as to the rights of the parties... [and include] a summary of the evidence received and relied upon and the reasons or grounds upon which the determination was made." (Lab. Code, § 5313.) The WCJ's decision "must be based on admitted evidence in the record" (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 478 (Appeals Bd. en banc)), and the decision must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) In Hamilton, we held that the record of proceedings must contain, at a minimum, "the issues submitted for decision, the admissions and stipulations of the parties, and the admitted evidence." (Hamilton, supra, at p. 475.)

Cal. Code Regs., tit. 8, § 10832; San Bernardino Community Hospital v. WCAB (McKernan); Evans v. WCAB

WCAB Rule 10832: WCJ may issue a Notice of Intention (NIT) to provide notice and opportunity to respond before acting.

WCJ failed to issue an NIT before granting the petition to be relieved, violating due process.

From the decision · page 7We note that here, one of the procedural options available to the WCJ was the issuance of a Notice of Intention (NIT). WCAB Rule 10832 describes the process by which a WCJ may issue an NIT, and provides a framework designed to afford the parties with their "fundamental rights to due process." (Rucker, supra, at pp. 157-158.) WCAB Rule 10832 provides that following the filing of a petition, the WCJ may, "for any proper purpose," provide notice of its intended action, and thereafter provide the parties with corresponding opportunity to respond to the notice. (Cal. Code Regs., tit. 8, § 10832.) The process of issuing an NIT thus provides both notice to the parties of the court's intended course of action, and the opportunity for those parties to be heard. (See also San Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928, 936 [64 Cal.Comp.Cases 986] [the essence of due process is notice and opportunity to be heard].) Issuing an NIT clearly sets out the next steps required of the parties and the WCJ and encourages the creation of a complete record which reflects the evidentiary and legal bases for the WCJ's determination. (Evans v. Workmen's Comp. Appeals Bd., supra, at p. 755.)

No evidence or testimony under oath was admitted regarding the petition to be relieved; no evidentiary record was created.

From the decision · page 6Here, applicant seeks removal of an Order granting his attorney's Petition to be Relieved. However, there has been no evidence or testimony under oath admitted into the record regarding the allegations in his Petition, i.e., there is no evidence upon which we could base a decision. Without an evidentiary record, we are unable to determine whether the WCJ's decision is supported by substantial evidence, as required. (Hamilton, supra, at p. 476; Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280-281 [39 Cal.Comp.Cases 310].) Therefore, we return this matter to the trial level for the WCJ to conduct an evidentiary hearing and create a record upon which a decision can be made.

WCJ granted petition to be relieved without issuing a Notice of Intention or providing applicant opportunity to object or offer evidence.

From the decision · page 7Here, the WCJ granted applicant's attorney's Petition to be Relieved without issuing an NIT, and without providing applicant with the opportunity to offer evidence in rebuttal or to otherwise object to his attorney's request to be relieved. (9/25/24 MOH; 10/2/24 Order Relieving Counsel.) The WCJ therefore decided the matter in violation of applicant's right to due process and a fair hearing, which caused applicant substantial prejudice and irreparable harm that reconsideration cannot cure.