ADJ16953633 · March 20, 2024

The WCJ's order joining Zurich as a party defendant was rescinded because it was issued without an adequate evidentiary record or due process, including lack of notice of intention and opportunity for hearing as required by law.

From the decision · page 1Defendant Zurich American Insurance Company (Zurich) filed an Objection to Order of Joinder of Zurich and Petition for Reconsideration (Petition) seeking review of the order issued by a Workers' Compensation Administrative Law Judge (WCJ) on January 3, 2023. Therein, the WCJ ordered Zurich joined as a party defendant in case no. ADJ16953635 and further ordered Liberty Mutual Insurance Company (Liberty Mutual) dismissed as a party defendant.

The WCJ issued the Order of Joinder without providing notice of intention or setting the matter for hearing as required by WCAB Rule 10832.

Favours Defendant prevailed

This procedural failure deprived the parties of due process and an adequate record to support the joinder decision.

From the decision · page 4Here, counsel for Liberty Mutual served an Amended Petition for Dismissal of Liberty Mutual for Lack of Coverage and Petition for Joinder of Zurich on December 8, 2023. The WCJ issued a corresponding Order of Joinder and Order Dismissing Party Defendant on January 3, 2024. The WCJ thus issued the order joining Zurich 26 days after the filing of the petition for joinder, without providing the parties with notice of intention under rule 10832 or setting the matter for further hearing, and accordingly, there is an insufficient basis upon which to evaluate the issues raised in Zurich's Petition. (Cal. Code Regs., tit. 8, § 10832.)

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

Due process requires notice and opportunity to be heard before joining or dismissing a party defendant.

The WCJ's order joining Zurich was rescinded because it was issued without notice of intention or hearing, violating due process.

From the decision · page 2Parties 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].) A fair hearing is "one of `the rudiments of fair play' assured to every litigant...." (Id. at p. 158.) As stated by the California Supreme Court in Carstens v. Pillsbury (1916) 172 Cal. 572, "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 p. 577.) 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].)

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

The WCJ must make findings based on admitted evidence and substantial evidence to support decisions affecting parties' rights.

The WCJ's order was rescinded due to lack of an evidentiary record to support the joinder decision.

From the decision · page 2Section 5313 also requires the WCJ to "make and file findings upon all facts involved in the controversy and [make and file] an award, order, or decision stating the determination as to the rights of the parties... [and include] a summary of the evidence received and relied upon and the reasons or grounds upon which the determination was made." (Lab. Code, § 5313.) The WCJ's decision "must be based on admitted evidence in the record" (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 478 (Appeals Bd. en banc)), and the decision 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. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) In Hamilton, we held that the record of proceedings must contain, at a minimum, "the issues submitted for decision, the admissions and stipulations of the parties, and the admitted evidence." (Hamilton, supra, at p. 475.)

Cal. Code Regs., tit. 8, 10832

WCAB Rule 10832 provides a process for issuing a Notice of Intention to afford parties due process.

The WCJ failed to provide notice of intention under Rule 10832 before joining Zurich, leading to rescission of the order.

From the decision · page 3We note that here, one of the procedural options available to the WCJ was the issuance of a Notice of Intention (NIT). WCAB Rule 10832 describes the process by which a WCJ may issue an NIT, and provides a framework designed to afford the parties with their "fundamental rights to due process." (Rucker, supra, at pp. 157-158.) Rule 10832 provides that following the filing of a petition, the WCJ may, "for any proper purpose," provide notice of its intended action, and thereafter provide the parties with corresponding opportunity to respond to the notice. (Cal. Code Regs., tit. 8, § 10832(a).) The process of issuing a Notice of Intention thus provides both notice to the parties of the court's intended course of action, and the opportunity for those parties to be heard. (See also San Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928, 936 [64 Cal.Comp.Cases 986] [the essence of due process is notice and opportunity to be heard].) Issuing a notice of intention clearly sets out the next steps required of the parties and the WCJ, and encourages the creation of a complete record which reflects the evidentiary and the legal bases for the WCJ's determination. (Evans v. Workmen's Comp. Appeals Bd., supra, at p. 755.)

lack of evidentiary record and failure to provide notice of intention under rule 10832

From the decision · page 4Here, counsel for Liberty Mutual served an Amended Petition for Dismissal of Liberty Mutual for Lack of Coverage and Petition for Joinder of Zurich on December 8, 2023. The WCJ issued a corresponding Order of Joinder and Order Dismissing Party Defendant on January 3, 2024. The WCJ thus issued the order joining Zurich 26 days after the filing of the petition for joinder, without providing the parties with notice of intention under rule 10832 or setting the matter for further hearing, and accordingly, there is an insufficient basis upon which to evaluate the issues raised in Zurich's Petition. (Cal. Code Regs., tit. 8, § 10832.)