Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 10628
Cal. Code Regs., tit. 8, 10628(a) prohibits final orders by designated service and requires proper service to start time limits.
The defective service of the dismissal petition and notice on applicant violated this regulation.
From the decision · page 3on applicant, whether or not applicant is represented. WCAB Rule 10628(a) (Cal. Code Regs., tit.
8, § 10628) provides that final orders may not be served by designated service. Where an order
can be shown to have been defectively served, the time limit begins to run as of the date of receipt
of the order. (Hartford Accident & Indemnity Co. v. Workers' Comp. Appeals Bd. (Phillips) (1978)
86 Cal.App.3d 1 [43 Cal.Comp.Cases 1193].) Here, SCIF filed its petition to dismiss on April 4,
2024, but failed to serve applicant. In the Petition for Reconsideration, applicant's attorney alleges
that he did not receive the NOI. Consequently, there are significant issues with service herein.
Labor Code section 5313
Labor Code section 5313 requires a decision to comply with evidentiary and procedural rules.
The WCJ's dismissal without a hearing or admitted evidence violated this requirement.
From the decision · page 3The statutory and regulatory duties of a WCJ include the issuance of a decision that
complies with Labor Code section 5313. "The Labor Code and the Board's rules set forth what
must be included in a proper trial record. It is the responsibility of the parties and the WCJ to
ensure that the record of the proceedings contains at a minimum, the issues submitted for decision,
the admissions and stipulations of the parties, and the admitted evidence." (Hamilton v. Lockheed
Corporation (2001) 66 Cal.Comp.Cases 473, 475 (Appeals Bd. en banc) (Hamilton).) The WCJ's
opinion on decision "enables the parties, and the Board if reconsideration is sought, to ascertain
the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Id.
at p. 476, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33
Cal.Comp.Cases 350].) "For the opinion on decision to be meaningful, the WCJ must refer with
specificity to an adequate and completely developed record." (Hamilton, supra, 66
Cal.Comp.Cases at p. 476.)
Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151
Due process requires notice and a meaningful opportunity to present evidence, including a hearing with the ability to call and cross-examine witnesses.
The dismissal without a hearing violated due process rights of applicant.
From the decision · page 4All 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].)