ADJ121643 · April 16, 2024

The WCJ issued the Order of Joinder without providing the required notice period for objection and without considering the objection filed late by Perez, resulting in prejudice and lack of due process. The Appeals Board found that removal was warranted to ensure a fair hearing and due process.

Objection to joinder was filed 18 days after service, beyond the 10-day objection period.

Favours Applicant prevailed

This late objection was not considered by the WCJ before issuing the Order of Joinder, violating procedural rules and due process.

From the decision · page 2In this case, we note that the petitioner, who was unrepresented at the time of the filing and service of the petition for joinder on December 2, 2021, filed an objection, date-stamped received on December 20, 2021, or 18 days later. This was beyond the 10 days provided in WCAB Rule 10382 and beyond the 5 day extension for mailing. (Cal. Code Regs., tit. 8, § 10507.). In his Petition, Perez alleges that he believed that the objection period was 20 days and that the WCJ should not have issued the Order of Joinder within 15 days without reviewing his objection.

No hearing or opinion on decision was issued by the WCJ for the Order of Joinder.

Favours Applicant prevailed

Without a hearing or opinion, the petitioner was deprived of a fair hearing and due process, warranting removal of the order.

From the decision · page 5Here, there was no hearing and thus no minutes and summary recording stipulations, defining the issues, and identifying the evidence related to the potential joinder of the substantial shareholders. In addition, the WCJ issued the Joinder Order without an opinion on decision. As a result, there is no meaningful opportunity to review the WCJ's decision to join petitioner. More significantly, 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. (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].)

Cal. Code Regs., tit. 8, 10382

WCAB Rule 10382 requires a 10-day notice period for objection to joinder petitions.

The WCJ issued the Order of Joinder without allowing the 10-day objection period to expire, violating this rule.

From the decision · page 2DISCUSSION WCAB Rule 10382 (Cal. Code Regs., tit. 8, § 10382) states in pertinent part:

Cal. Code Regs., tit. 8, 10955(a)

Removal is granted only if substantial prejudice or irreparable harm will result and reconsideration is inadequate.

The Appeals Board found that the petitioner showed substantial prejudice and irreparable harm due to lack of due process, justifying removal.

From the decision · page 3Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (Cortez) (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (Kleemann) (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) 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, § 10955(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, § 10955(a).)

Objection to joinder filed 18 days after service, beyond the 10-day objection period and 5-day mailing extension.

From the decision · page 2In this case, we note that the petitioner, who was unrepresented at the time of the filing and service of the petition for joinder on December 2, 2021, filed an objection, date-stamped received on December 20, 2021, or 18 days later. This was beyond the 10 days provided in WCAB Rule 10382 and beyond the 5 day extension for mailing. (Cal. Code Regs., tit. 8, § 10507.). In his Petition, Perez alleges that he believed that the objection period was 20 days and that the WCJ should not have issued the Order of Joinder within 15 days without reviewing his objection.

No hearing or opinion on decision was issued by the WCJ for the Order of Joinder, depriving the petitioner of a fair hearing.

From the decision · page 5Here, there was no hearing and thus no minutes and summary recording stipulations, defining the issues, and identifying the evidence related to the potential joinder of the substantial shareholders. In addition, the WCJ issued the Joinder Order without an opinion on decision. As a result, there is no meaningful opportunity to review the WCJ's decision to join petitioner. More significantly, 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. (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].)