Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, § 10832; Bland v. Workers Comp. Appeals Bd. (1970) 3 Cal.3d 324; Marino v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 485
A Notice of Intention to Dismiss (NIT) must be a separate and distinct document, clearly indicating it is a NIT, the parties involved, relevant dates/timelines, and the basis for the NIT. There is strong public policy favoring disposition of cases on their merits rather than on procedural grounds.
The WCJ did not issue a proper NIT as required, so the dismissal was void.
From the decision · page 5(2002) 103 Cal.App.4th 485 [67
Cal.Comp.Cases 1273].)
It is also well established that although a NIT may be provided alongside Minutes of
Hearing, it is a separate and distinct document and should clearly indicate 1) that it is a NIT; 2)
the parties involved; 3) the relevant dates and/or timelines; and 4) the basis for the NIT.
Here, rather than issue a separate and proper NIT, the WCJ specified his intent to dismiss
applicant's case and issue sanctions and costs within the May 3, 2021 Minutes of Hearing. As the
NIT was not validly issued, the NIT, along with the resulting Order, are void ab initio.
We note, however, that even if the NIT had been properly issued, the Order is fatally
defective as it references WCAB Rule 10755 as authority for the dismissal, which applies
mandatory settlement conferences, not trials. The WCJ also designated defendant for service in
Cal. Code Regs., tit. 8, § 10628(a)
The WCAB shall not designate a party, or their attorney or agent of record, to serve any final order, decision or award.
Service of the Order was improperly delegated to defendant, making the dismissal void.
From the decision · page 6contravention to WCAB Rule 10628, which states, in relevant part, that "[t]he Workers'
Compensation Appeals Board shall not designate a party, or their attorney or agent of record, to
serve any final order, decision or award." (Cal. Code Regs., tit. 8, § 10628(a).) Given that the
Order was a final order, designated service is improper.
Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (en banc)
Decisions of the Appeals Board must be based on admitted evidence in the record, and the WCJ must refer to the evidence in the opinion on decision.
The WCJ failed to create a proper evidentiary record, violating due process.
From the decision · page 6Additionally, decisions of the Appeals Board "must be based on admitted evidence in the
record." (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Bd.
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." (Hamilton, supra, at 475.) The purpose of this
requirement is to enable "the parties, and the Board if reconsideration is sought, [to] ascertain the
basis for the decision[.]" (Hamilton, supra, at 476, citing Evans v. Workmen's Comp. Appeals Bd.
(1968) 68 Cal. 2d 753, 755 [33 Cal.Comp.Cases 350].)
Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 711-712 [57 Cal.Comp.Cases 230]
Due process requires a party be provided with reasonable notice and an opportunity to be heard.
Applicant was not provided proper notice, violating due process.
From the decision · page 6Given the above issues, upon receipt of applicant's Petition, the WCJ should have set the
matter for hearing to create a proper record in accordance with Hamilton and to provide due
process. It is well established that due process requires a party be provided with reasonable notice
and an opportunity to be heard. (Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703,
711-712 [57 Cal.Comp.Cases 230].)