ADJ8310173 · December 11, 2023

The WCAB found that the lien claimant filed a timely objection and was entitled to a hearing, which the WCJ failed to provide, thus violating due process and procedural fairness. The Board emphasized liberal pleading rules and the preference for adjudication on the merits rather than dismissal on technical grounds.

From the decision · page 1Lien claimant Keystone Medical Group seeks reconsideration of the Order Taking Off Calendar (OTOC) and the Order for Costs (Order) issued by the workers' compensation administrative law judge (WCJ) on October 10, 2018, and October 16, 2018, respectively, wherein the WCJ took the matter off calendar and by way of a separate order, awarded costs to defendant. Lien claimant contends that it is entitled to proceed to trial on the merits of its lien and that it did not engage in bad faith or frivolous conduct.

Lien claimant filed a timely objection to the notice of intention to order costs, entitling it to a hearing which the WCJ failed to provide.

Favours Applicant prevailed

This procedural failure violated due process and was a basis to rescind the Order for Costs and Order Taking Off Calendar.

From the decision · page 4Here, lien claimant did file a timely objection to the notice of intention, so that the WCJ should have considered it before issuing the Order for Costs, and lien claimant's alleged failure to object cannot provide a basis for the Order. Had the WCJ wished to do so, she could have issued a new notice of intention, but she did not. Moreover, lien claimant was entitled to a hearing following its objection.

Defendant was aware the lien was filed under the wrong case number but did not show prejudice and the cases involved the same parties and counsel.

Favours Applicant prevailed

Lack of prejudice and identity of parties supported adjudication on the merits rather than dismissal on technical grounds.

From the decision · page 2On April 14, 2018, lien claimant filed a Declaration of Readiness (DOR) in ADJ8310173, and listed ADJ9048241 as a companion case. On July 5, 2018, the parties completed a pre-trial conference statement. According to defendant's hand-written admission on the statement, it was aware that lien claimant had filed the lien under the wrong case number.

Blackledge v. Bank of America, ACE American Insurance Company (2010) 75 Cal.Comp.Cases 613 (Appeals Bd. en banc)

WCJ must make and file findings on all facts and provide reasons for decisions to enable meaningful reconsideration (Lab. Code, §§ 5502, 5313; Cal. Code Regs., tit. 8, § 10761).

The WCJ failed to consider lien claimant's timely objection and did not provide a hearing, violating procedural requirements.

From the decision · page 3A WCJ is required to "... make and file findings upon all facts involved in the controversy and an award, order, or decision stating the determination as to the rights of the parties. Together with the findings, decision, order, or award there shall be served upon all the parties to the proceedings a summary of the evidence received and relied upon and the reasons or grounds upon which the determination was made." (Lab. Code, § 5502, 5313; Cal. Code Regs., tit. 8, § 10761; see also Blackledge v. Bank of America, ACE American Insurance Company (Blackledge) (2010) 75 Cal.Comp.Cases 613, 621-622 (Appeals Bd. en banc).) 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." (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Bd. en banc) (Hamilton), citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350].)

Decisions must be supported by substantial evidence (Lab. Code, §§ 5903, 5952(d)).

The Board reviewed the record and found no basis for the Order Taking Off Calendar or Order for Costs due to lack of hearing and record.

From the decision · page 3Decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "It is the responsibility of the parties and the WCJ to ensure that the record is complete when a case is submitted for decision on the record. At a minimum, the record must

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151

Due process requires notice and meaningful opportunity to present evidence (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151).

Lien claimant was entitled to a hearing after timely objection, which was not provided.

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].)

Liberal pleading rules apply; technical defects do not deprive Board of jurisdiction (Code Civ. Proc. §§ 452, 473; Lab. Code, § 5709; WCAB Rule 10617).

The Board emphasized adjudication on merits over technical defects, rejecting defendant's argument about wrong case number filing.

From the decision · page 6that the Act disfavors application of formalistic rules of procedure that would defeat an employee's entitlement to rehabilitation benefits." (Martino v. Workers' Comp. Appeals Bd., (2002) 103 Cal. App. 4th 485, 490 [67 Cal. Comp. Cases 1273].) Courts have repeatedly rejected pleading technicalities as grounds for depriving the Board of jurisdiction. (Rubio v. Workers' Comp. Appeals Bd. (1985) 165 Cal. App. 3d 196, 200§ 01 [50 Cal. Comp. Cases 160]; Liberty Mutual Ins. Co. v. Workers' Comp. Appeals Bd. (1980) 109 Cal. App. 3d 148, 152§ 153 [45 Cal. Comp. Cases 866].) Moreover, section 5709 states that "[n]o informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division..." (Lab. Code, § 5709.) "Necessarily, failure to comply with the rules as to details is not jurisdictional." (Rubio, supra, at pp. 200§ 201; see Cal. Code Regs., tit. 8, former § 10492, now § 10517.)

Lien claimant filed a timely objection to the notice of intention to order costs, which the WCJ failed to consider before issuing the Order for Costs.

From the decision · page 4Here, lien claimant did file a timely objection to the notice of intention, so that the WCJ should have considered it before issuing the Order for Costs, and lien claimant's alleged failure to object cannot provide a basis for the Order. Had the WCJ wished to do so, she could have issued a new notice of intention, but she did not. Moreover, lien claimant was entitled to a hearing following its objection.

Defendant was aware the lien was filed under the wrong case number but did not show prejudice and the cases involved the same parties and counsel.

From the decision · page 2On April 14, 2018, lien claimant filed a Declaration of Readiness (DOR) in ADJ8310173, and listed ADJ9048241 as a companion case. On July 5, 2018, the parties completed a pre-trial conference statement. According to defendant's hand-written admission on the statement, it was aware that lien claimant had filed the lien under the wrong case number.