What the panel ordered
Petition for removal granted; WCJ's order denying joinder rescinded; matter returned to trial level for further proceedings.
SISF petitioned for removal after the WCJ denied its petition for joinder as party defendant. The WCAB reviewed the record and granted removal, rescinding the WCJ's order and returning the matter to the trial level.
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.
The WCJ denied SISF's petition for joinder, reasoning that SISF steps into the shoes of the insolvent self-insured employer and does not require formal joinder. The WCAB found that due process was not provided because no hearing or notice of intent was issued, and no record supported the denial. The WCAB rescinded the order and remanded for further proceedings.
From the decision · page 4Here, the WCJ summarily issued an order denying the petition for joinder without issuing a notice of intent and without conducting a hearing on the petition. (Cal. Code Regs., tit. 8, § 10832.) No record supports the order denying joinder; accordingly, due process requires that we grant removal, rescind the order denying joinder, and return this matter to the trial level for further proceedings.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ denied SISF's petition for joinder without issuing a notice of intent or conducting a hearing, and no record supported the denial.
Favours Applicant prevailed
This lack of due process required the WCAB to grant removal and rescind the order, remanding for further proceedings.
From the decision · page 4Here, the WCJ summarily issued an order denying the petition for joinder without issuing a notice of intent and without conducting a hearing on the petition. (Cal. Code Regs., tit. 8, § 10832.) No record supports the order denying joinder; accordingly, due process requires that we grant removal, rescind the order denying joinder, and return this matter to the trial level for further proceedings.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, § 10843(a)
Removal is granted only if the petitioner shows substantial prejudice or irreparable harm and reconsideration is not an adequate remedy.
The WCAB applied this standard in granting removal of the WCJ's order denying joinder.
From the decision · page 3Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10843(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10843(a).)
Labor Code § 3743(c)
The fund shall be a party in interest in all proceedings involving compensation claims against an insolvent self-insurer whose compensation obligations have been paid or assumed by the fund.
The WCAB referenced this statute in discussing SISF's rights and obligations in the proceedings.
From the decision · page 3(a) Upon order of the director pursuant to Section 3701.5, the fund shall assume the workers' compensation obligations of an insolvent self-insurer. (b) Notwithstanding subdivision (a), the fund shall not be liable for the payment of any penalties assessed for any act or omission on the part of any person other than the fund, including, but not limited to, the penalties provided in Section 132a, 3706, 4553, 4554, 4556, 4557, 4558, 4601.5, 5814, or 5814.1. (c) The fund shall be a party in interest in all proceedings involving compensation claims against an insolvent self-insurer whose compensation obligations have been paid or assumed by the fund. The fund shall have the same rights and defenses as the insolvent self-insurer, including, but not limited to, all of the following: (1) To appear, defend, and appeal claims. (2) To receive notice of, investigate, adjust, compromise, settle, and pay claims. (3) To investigate, handle, and deny claims.
Cal. Code Regs., tit. 8, § 10382
A party shall not be joined until 10 days after service of either a petition for joinder by a party or a notice of intention to order joinder issued by a workers' compensation judge, unless the party to be joined waives its right to this notice period.
The WCAB referenced this rule in discussing the procedural requirements for joinder.
From the decision · page 5part, that: "A party shall not be joined until 10 days after service of either a petition for joinder by a party or a notice of intention to order joinder issued by a workers' compensation judge, unless the party to be joined waives its right to this notice period." (Cal. Code Regs., tit. 8, § 10382, (emphasis added).)
What proof carried it
The evidence the panel weighed, by kind.
No hearing was conducted and no record supported the order denying joinder, which violated due process.
From the decision · page 4Here, the WCJ summarily issued an order denying the petition for joinder without issuing a notice of intent and without conducting a hearing on the petition. (Cal. Code Regs., tit. 8, § 10832.) No record supports the order denying joinder; accordingly, due process requires that we grant removal, rescind the order denying joinder, and return this matter to the trial level for further proceedings.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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