ADJ1703796 · November 18, 2025

The Board found that applicant rebutted the presumption of mailing of the Notice of Intention to Dismiss and Order Dismissing, and that due process required setting aside the Order Dismissing because applicant did not receive adequate notice and opportunity to be heard.

From the decision · page 1On September 5, 2025, we issued our Opinion and Decision After Reconsideration (Decision). In that Decision, we rescinded the Findings and Order (F&O) issued on January 22, 2021, by a workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant did not rebut the presumption of receipt of the notice of intention (NIT) or the Order Dismissing and did not show good cause to vacate the September 6, 2016 Order Dismissing. We substituted a new F&O, which found that applicant rebutted the presumption of receipt and that applicant demonstrated good cause to vacate the Order Dismissing her case and ordered that the Petition to Vacate was granted and that the Order Dismissing was rescinded.

Applicant credibly testified she did not receive the Notice of Intention to Dismiss or the Order Dismissing, rebutting the presumption of mailing.

Favours Applicant prevailed

This testimony established lack of adequate notice and opportunity to be heard, requiring setting aside the Order Dismissing to satisfy due process.

From the decision · page 6As we stated in our Decision, Here, applicant credibly testified that she did not receive the NIT. Thus, she was not provided with adequate notice and an opportunity to be heard, and as a practical matter, if she did not receive the NIT, she could not object to it. Since the Order Dismissing is premised upon the notice and opportunity to be heard provided by the NIT, the Order is void. Moreover, if applicant did not receive the Order Dismissing, she was not provided with notice and an opportunity to challenge the Order. We also observe that the failure to provide applicant with the requisite due process is in itself good cause to set aside the Order Dismissing. (Decision, p. 6.) Accordingly, we deny the Petition for Reconsideration.

Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803, 1817 (Appeals Bd. en banc)

A letter correctly addressed and properly mailed is presumed received in the ordinary course of mail, but this presumption is rebuttable by believable contrary evidence of non-receipt.

The Board found that applicant rebutted the presumption of mailing by credible testimony and lack of return mail documentation, requiring weighing of evidence on receipt.

From the decision · page 4In deciphering the WCJ's Opinion, we are indeed left with contradictory statements by the WCJ. As discussed in our Decision, in Suon v. California Dairies, we explained that, although a "letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail," that presumption is rebuttable. (Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803, 1817 (Appeals Bd. en banc), citations omitted.) "If the sending party thus produces evidence that a document was mailed, the burden shifts to the recipient to produce `believable contrary evidence' that it was not received. [Citations.] Once the recipient produces sufficient evidence showing non-receipt of the mailed item, "the presumption disappears" and the "trier of fact must then weigh the denial of receipt against the inference of receipt arising from proof of mailing and decide whether or not the letter was received. [citation.]" (Ibid.) We also explained that in Garza v. Workmen's Comp. Appeals Bd.

Rucker v. Workers' Comp Appeals Bd. (2000) Cal.App.4th 151, 157-158; Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295

Due process requires notice and opportunity to be heard before an order dismissing a case can be validly entered.

The Board found that failure to provide notice and opportunity to be heard violated due process and constituted good cause to set aside the Order Dismissing.

From the decision · page 5As set forth in our Decision, "[t]he Board `is bound by the due process clause of the Fourteenth Amendment to the United States Constitution to give the parties before it a fair and open hearing...All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal.' " (Rucker v. Workers' Comp Appeals Bd. (2000) Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805], citing Kaiser Co. v. Industrial Acc. Com. (1952) 109 Cal.App.2d 54, 58.) Determining an issue without giving the parties notice and an opportunity to be heard violates the parties' rights to due process. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584], citing Rucker, supra, at pp. 157- 158.) Due process requires "a `hearing appropriate to the nature of the case.'" (In re James Q. (2000) 81 Cal.App.4th 255, 265, citing Mullane v. Cent. Hanover Bank & Trust Co. (1950) 339 U.S. 306, 313.)

Applicant's credible testimony of non-receipt of Notice of Intention to Dismiss and Order Dismissing

From the decision · page 6As we stated in our Decision, Here, applicant credibly testified that she did not receive the NIT. Thus, she was not provided with adequate notice and an opportunity to be heard, and as a practical matter, if she did not receive the NIT, she could not object to it. Since the Order Dismissing is premised upon the notice and opportunity to be heard provided by the NIT, the Order is void. Moreover, if applicant did not receive the Order Dismissing, she was not provided with notice and an opportunity to challenge the Order. We also observe that the failure to provide applicant with the requisite due process is in itself good cause to set aside the Order Dismissing. (Decision, p. 6.) Accordingly, we deny the Petition for Reconsideration.