ADJ7306346 · December 17, 2025

The Order of Dismissal dated March 23, 2016, was void ab initio due to lack of valid service of the Notice of Intent to Dismiss and procedural defects, thus good cause to vacate was found.

From the decision · page 4Here, the WCJ issued a NIT on February 25, 2016, and defendant was designated for service. Proof of service of the NIT, however, was not located in the evidentiary record and the WCJ confirmed as much in his August 23, 2021 Minutes of Hearing. Given that valid service was not completed, the NIT and the subsequent March 23, 20216 Order of Dismissal are thus void in ab initio.

No proof of service of the Notice of Intent to Dismiss was found in the record.

Favours Applicant prevailed

Without valid service, the Notice of Intent to Dismiss and subsequent Order of Dismissal are void ab initio, justifying vacating the dismissal.

From the decision · page 4Here, the WCJ issued a NIT on February 25, 2016, and defendant was designated for service. Proof of service of the NIT, however, was not located in the evidentiary record and the WCJ confirmed as much in his August 23, 2021 Minutes of Hearing. Given that valid service was not completed, the NIT and the subsequent March 23, 20216 Order of Dismissal are thus void in ab initio.

The Order of Dismissal was based on an ostensible Petition for Dismissal by defendant, which was not located in the record.

Favours Applicant prevailed

The absence of the Petition for Dismissal renders the Order defective and void, supporting vacating the dismissal.

From the decision · page 6We note also that the Order of Dismissal is defective on its face since the NIT is based upon a failure to appear, and the Order is based on an ostensible Petition for Dismissal by defendant, which, as noted above, was not located in the record. Thus, even if the NIT had not been void ab initio, on this basis alone, the Order of Dismissal is rendered void. As parties are aware, WCAB Rule 10515 provides that "Demurrers, petitions for judgment on the pleadings and petitions for summary judgment are not permitted." (Cal. Code Regs., tit. 8, § 10515.) WCJ's issuance of an Order of Dismissal, however, was akin to a summary judgement, in contravention to WCAB Rule 10515, Hamilton, and applicant's right to due process.

From the decision · page 2The parties proceeded with discovery and retained Gary Brazina, M.D. as the orthopedic Agreed Medical Evaluator (AME) and Jeffrey Hirsch, M.D. as the internal AME. Both physicians evaluated applicant on at least one occasion and issued corresponding reports. (Exhibits Y-Y4; X1-X2.)

From the decision · page 2The parties proceeded with discovery and retained Gary Brazina, M.D. as the orthopedic Agreed Medical Evaluator (AME) and Jeffrey Hirsch, M.D. as the internal AME. Both physicians evaluated applicant on at least one occasion and issued corresponding reports. (Exhibits Y-Y4; X1-X2.)

Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703

Due process requires reasonable notice and opportunity to be heard before dismissal.

The lack of valid service of the Notice of Intent to Dismiss violated due process, rendering the dismissal void ab initio.

From the decision · page 5Due process also requires that a party be provided with reasonable notice and an opportunity to be heard. (Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 711- 712 [57 Cal.Comp.Cases 230].) All 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].) A fair hearing is "... one of `the rudiments of fair play' assured to every litigant..." (Id. at 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]; 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, supra, at p. 710.)

Labor Code section 5803

Labor Code section 5803 provides continuing jurisdiction over all orders and awards.

The Appeals Board retains continuing jurisdiction to vacate the defective dismissal order.

From the decision · page 6Lastly, respect to the issue of estoppel and lack of continuing jurisdiction, the Legislature has expressly provided that the Appeals Board has "continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of this division[.]" (§ 5803.) Thus, while the ability to alter a final award five years after the date of injury requires good cause under sections 5410 and 5804, at no time does the Appeals Board lose jurisdiction. Further, the Appeals Board has broad equitable powers with respect to matters within its jurisdiction. (Dyer v. Workers' Comp. Appeals Bd. (1994) 22 Cal.App.4th 1376, 1382 [59 Cal.Comp.Cases 96].) In Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827 [45 Cal.Comp.Cases 1106], the court observed that equitable principles are frequently applied to workers' compensation matters. In that case, the court held that based upon the principles of equitable estoppel, the Appeals Board erred in permitting the insurance carrier in that case to claim an overpayment of temporary disability against applicant's permanent disability since the carrier unreasonably delayed in filing the medical report used to terminate benefits. (Id. at pp. 837-838.)

No proof of service of the Notice of Intent to Dismiss was located in the record, confirmed by the WCJ in the August 23, 2021 Minutes of Hearing.

From the decision · page 4Here, the WCJ issued a NIT on February 25, 2016, and defendant was designated for service. Proof of service of the NIT, however, was not located in the evidentiary record and the WCJ confirmed as much in his August 23, 2021 Minutes of Hearing. Given that valid service was not completed, the NIT and the subsequent March 23, 20216 Order of Dismissal are thus void in ab initio.