What the panel treated as outcome-determinative, and which side it favoured.
No evidence or testimony was admitted at the May 7, 2021 hearing, so no evidentiary record supported dismissal.
Favours Applicant prevailed
Without an evidentiary record, the WCJ's dismissal order could not be properly evaluated, requiring rescission.
From the decision · page 3Here, no documents or testimony were admitted into evidence at the May 7, 2021 hearing.
In the absence of an evidentiary record, we are unable to evaluate the basis for the WCJ's Order.
Therefore, we must return this matter to the trial level for further proceedings.
The lack of a hearing prevented parties from exercising their rights to call and cross-examine witnesses and introduce evidence.
Favours Applicant prevailed
This deprivation violated due process, necessitating rescission and remand.
From the decision · page 4[The] commission,... must find facts and declare and enforce rights
and liabilities, -- in short, it acts as a court, and it must observe the
mandate of the constitution of the United States that this cannot be
done except after due process of law. (Id. at 577.)
Due process guarantees all parties the right to notice of hearing and a fair hearing. (Rucker,
supra, at 157-158.) 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].)
The lack of a hearing prevented either party from exercising their right to call witnesses,
cross-examine witnesses and/or introduce evidence in support of their positions or in rebuttal of
the opposing parties' evidence.
Service of the Order of Dismissal was defective under WCAB Rule 10628(a).
Favours Applicant prevailed
Defective service further supported rescission of the dismissal order.
From the decision · page 4"The improper restriction on the right to present evidence in
rebuttal is a deprivation of the constitutional guaranty of due process of law." (Rucker, supra, at
157 citing Pence v. Industrial Acc. Com. (1965) 63 Cal.2d 48, 50-51.) Therefore, the WCJ denied
both parties their fundamental right to due process with respect to the NIT, and we must rescind
the Order and return the matter to the WCJ on due process grounds as well.
Finally, we note that the Order of Dismissal included an order of delegated service. WCAB
Rule 10628(a) states that:
The Workers' Compensation Appeals Board shall serve the injured
employee or any dependent(s) of a deceased employee, whether or
not the employee or dependent is represented, and all parties of
record with any final order, decision or award issued by it on a
disputed issue after submission. The Workers' Compensation
Appeals Board shall not designate a party, or their attorney or agent
of record, to serve any final order, decision or award relating to a
submitted issue.