ADJ12975927 — California WCAB decision

What the panel ordered

Removal granted, WCJ's consolidation Order rescinded, matter returned to trial level for further proceedings.

Defendant sought removal of the WCJ's Order consolidating two cases, ADJ12975927 and ADJ13267739, issued January 12, 2021.

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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 / removalDefendant prevailed

The consolidation order was issued without providing defendant a meaningful opportunity to be heard, violating due process rights, warranting removal and rescission of the order.

From the decision · page 2All 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].) "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312]; see also Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 1452-1454 [56 Cal.Comp.Cases 537].) 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]; Rucker, supra, at pp. 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].) A violation of a party's right to due process that prevents a party from having a fair hearing is reversible per se. (Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd. (Pinkney) (1994) 26 Cal.App.4th 789, 806 [59 Cal.Comp.Cases 461].)

The rules the panel named

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

Cal. Code Regs., tit. 8, former § 10589, now § 10396 (eff. Jan. 1, 2020)

The issue of consolidation should be set for a hearing to provide an opportunity to be heard and offer evidence.

The matter was returned to trial level for further proceedings on consolidation with opportunity for defendant to be heard.

From the decision · page 3regarding whether consolidation is warranted. (See Cal. Code Regs., tit. 8, former § 10589, now § 10396 (eff. Jan. 1, 2020).) It is recommended that the issue of consolidation be set for a hearing, at which defendant can be provided with an opportunity to be heard and, if appropriate, offer evidence in support of its contentions.

Hamilton v. Lockheed Corp. (2001) 66 Cal.Comp.Cases 473 (Appeals Board en banc)

Decisions of the Appeals Board must be based on admitted evidence in the record.

The WCJ must refer to evidence in the opinion and designate evidence forming the basis of the decision.

From the decision · page 2Additionally, decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corp. (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) As required by section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Id. at p. 475; Lab. Code, § 5313.)

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

Due process requires notice and a meaningful opportunity to present evidence in regards to the issues.

Defendant was not given a meaningful opportunity to be heard before consolidation order was issued.

From the decision · page 2All 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].) "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312]; see also Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 1452-1454 [56 Cal.Comp.Cases 537].) 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]; Rucker, supra, at pp. 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].) A violation of a party's right to due process that prevents a party from having a fair hearing is reversible per se. (Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd. (Pinkney) (1994) 26 Cal.App.4th 789, 806 [59 Cal.Comp.Cases 461].)

ADJ12975927 · March 23, 2021

What the panel ordered

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