ADJ13725819 · September 29, 2023

The WCJ's orders were rescinded because the attorney was not properly ordered to appear, no natural person was identified for sanctions, and the attorney was not given notice or opportunity to be heard, violating due process.

Applicant appeared at trial, satisfying the appearance requirement; attorney's non-appearance was not a failure to appear by a natural person.

Favours Applicant prevailed

This fact negated the basis for sanctions against the attorney for failure to appear.

Favours Applicant prevailed

No natural person was identified in the sanctions orders, making them void under Labor Code § 5813.

Favours Applicant prevailed

This procedural defect invalidated the sanctions orders.

Attorney was not given notice or opportunity to be heard before sanctions were imposed, violating due process rights.

Favours Applicant prevailed

This violation required rescission of the sanctions orders.

From the decision · page 6Finally, we observe that WCAB Rule 10421 requires that "[b]efore issuing such an order, the alleged offending party or attorney must be given notice and an opportunity to be heard." (Cal. Code Regs., tit. 8, § 10421(a).) 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. (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 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. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker, supra, at 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].) Determining an issue without giving the parties notice and an opportunity to be heard violates the parties' rights to due process. (Gangwish, supra, at 1295, citing Rucker, supra, at 157-158.)

WCAB Rule 10400, 10402; Code Civ. Proc. §§ 284-285; In re White & Bunch (1981) 46 Cal.Comp.Cases 810

An attorney representative must file and serve a notice of representation and remain attorney of record until substitution or dismissal.

WCAB Rule 10752(a); WCAB Rule 10305(c); Labor Code § 5700

Each party or their representative must appear at all hearings pertaining to the case in chief; appearance means presence by a natural person.

Applicant appeared at trial, satisfying the appearance requirement; a legal entity cannot fail to appear, so the attorney's non-appearance was not a failure to appear.

From the decision · page 5Turning to appearances at trial, WCAB Rule 10752, subdivision (a) requires that: "each applicant and defendant shall appear or have an attorney or non-attorney representative appear at all hearings pertaining to the case in chief." (Cal. Code Regs., tit. 8, § 10752(a), emphasis added.) Pursuant to WCAB Rule 10305(c), "`Appearance' means a party or their representative's presence, pursuant to section 5700, at any hearing." (Cal. Code Regs., tit. 8, § 10305(c), emphasis added.) Section 5700 provides in relevant part that: "Either party may be present at any hearing, in person, by attorney, or by any other agent...." (Lab. Code, § 5700.) These rules presume that an appearance is made by a natural person,5 whether licensed or not, and that an "appearance" is not made by a legal entity, such as a law firm. That is, because the statutory and regulatory scheme presumes that representation is by a natural person, the appearance requirement also presumes that an appearance is by a natural person. Hence, by the same logic, only a natural person can fail to appear.

Labor Code § 5813; WCAB Rule 10421(a); Rucker v. WCAB (2000) 82 Cal.App.4th 151; Gangwish v. WCAB (2001) 89 Cal.App.4th 1284

Sanctions under Labor Code § 5813 require identification of a natural person and notice and opportunity to be heard before imposition.

The orders were void because no natural person was identified and the attorney was not given notice or opportunity to be heard, violating due process.

Applicant appeared at trial, satisfying the appearance requirement; attorney's non-appearance was not a failure to appear by a natural person.

Attorney was not given notice or opportunity to be heard before sanctions were imposed, violating due process rights.

From the decision · page 6Finally, we observe that WCAB Rule 10421 requires that "[b]efore issuing such an order, the alleged offending party or attorney must be given notice and an opportunity to be heard." (Cal. Code Regs., tit. 8, § 10421(a).) 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. (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 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. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker, supra, at 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].) Determining an issue without giving the parties notice and an opportunity to be heard violates the parties' rights to due process. (Gangwish, supra, at 1295, citing Rucker, supra, at 157-158.)