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The California WCAB has issued several decisions recently on the topic of “due process.” The term “due process” is a phrase attorneys often fling about in court whenever they want to convey that something “unfair” has occurred. But the term has a very specific meaning, derived from the Due Process clauses of the U.S. Constitution and its implementation by the U.S. Supreme Court.
Publisher’s Note: Citations link to Lexis Advance unless otherwise noted.
I. Genesis of Due Process Found in the U.S. Constitution
Section One of the Fourteenth Amendment to the U.S. Constitution states in relevant part:
“…[N]or shall any State deprive any person of life, liberty, or property, without due process of law….” (Emphasis added.)
The U.S. Supreme Court has published many opinions on this issue and has arrived at the conclusion that due process is essentially the right of a party to be provided “notice” and “an opportunity to be heard” on all issues in dispute.
In the U.S. Supreme Court case of Grannis v. Ordean (1914) 234 U.S. 385, 34 S. Ct. 779, 58 L. Ed. 1363 [234 U.S. 385 (lexis.com)], the Court stated, “The fundamental requisite of due process of law is the opportunity to be heard. [Citations omitted.] And it is to this end, of course, that summons or equivalent notice is employed.” (Emphasis added.)
The concept is clear. Courts must be mindful not to impose binding determinations upon parties without giving them appropriate notice of the issue and an opportunity to present their side of the story.
II. Due Process Violations in Workers’ Compensation Proceedings
In the Noteworthy Panel Decision of Flores v. Reegs, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 427 (Lexis Advance), 2014 Cal. Wrk. Comp. P.D. LEXIS 427 (lexis.com), the WCAB found a violation of the parties’ right of due process when the WCJ issued determinations on several issues that had not been submitted at trial.
The opening line of the Judge’s Report and Recommendation (in Flores, supra) in response to the applicant’s Petition for Reconsideration states, “This matter came on for trial March 24, 2014 on the sole issue of Applicant’s motion to strike the QME report of George McCan, M.D.” (Emphasis added.)
Despite the “Motion to Strike” being the only issue set for trial, the Judge issued a decision holding that “the applicant sustained an industrial injury on May 20, 2011, to his low back, left hip, and left thigh that caused 7% permanent disability.”
Since the only issue submitted was “Applicant's motion to strike the QME report of George McCan, M.D.” a decision on these other issues, such as type of injury, level of permanent disability and apportionment was inappropriate and deprived the parties of their right to notice and an opportunity to be heard on these issues.
The WCAB granted applicant’s Petition for Reconsideration and returned the matter to the trial level for further proceedings. The WCAB cited the following cases in support of its position, illustrating an historical overview of the law, as it has developed, in the realm of workers’ compensation:
Fortich v. WCAB (1991) 233 Cal. App. 3d 1449, 56 Cal Comp Cases 537 [56 CCC 537 (lexis.com)]. The 2nd DCA stated, “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”
Beverly Hills Multispecialty Group, Inc. v. WCAB (1994) 26 Cal. App. 4th 789, 59 Cal Comp Cases 461 [59 CCC 461 (lexis.com)]. The 2nd DCA stated, “Because BHMG was denied due process by the failure to serve the defense medical reports, BHMG was denied a fair trial... Although the California Constitution states that a goal of workers’ compensation proceedings is to "accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character . . ..” (Cal. Const. Art. XIV, § 4), the right to due process is paramount to the goal of conducting workers’ compensation proceedings expeditiously. We therefore conclude that denial of a fair trial to a lien claimant is reversible per se.”
Cedeno v. American Nat’l Co. (1997) 62 Cal Comp Cases 939 [62 CCC 939 (lexis.com)] (Appeals Board Significant Panel Decision). The WCAB stated, “…the Appeals Board believes that requiring the lien claimants to conduct their cross-examination of witnesses by submitting questions to applicant's attorney is an undue infringement and restriction which denies them due process. The refusal of the opportunity to conduct discovery also denies them due process.”
Rucker v. WCAB (2000) 82 Cal. App. 4th 151, 65 Cal Comp Cases 805 [65 CCC 805 (lexis.com)]. The 2nd DCA stated, “The Board ‘is bound by the due process clause of the 14th Amendment of the US Constitution to give the parties before it a fair and open hearing.’ The right to such a hearing is one of ‘the rudiments of fair play’ [citation] assured to every litigant by the 14th Amendment as a minimal requirement. [Citations] … All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal. In no other way can a party maintain its rights or make its defense.” (Citation.)
Gangwish v. WCAB (2001) 89 Cal. App. 4th 1284, 66 Cal Comp Cases 584 [66 CCC 584 (lexis.com)]. The 2nd DCA stated, “In this case the WCAB rejected the WCJ's reasons and introduced its own rationale for the decision,… Gangwish complains he was denied the opportunity for rebuttal, which violated due process. Gangwish is correct.”
A contrary result to the above cited cases was reached in the Noteworthy Panel Decision of Robertson v. Bonnano, 2014 Cal. Wrk. Comp. P.D. LEXIS 443 (Lexis Advance), 2014 Cal. Wrk. Comp. P.D. LEXIS 443 (lexis.com). In Robertson, no due process violation was found when the WCAB determined the WCJ had reached the right result, but for the wrong reasons.
Patrick Robertson was a cabinetmaker who was required to haul heavy equipment up and down stairs on a regular basis. This caused considerable stress on his right lower extremity. Mr. Robertson filed a claim which was admitted to be industrial as to the right knee. The issue at trial was whether Mr. Robertson was entitled to medical treatment for an additional body part, the right hip, which he claimed was industrially injured as well.
The trial judge took testimony from the applicant and reviewed the extensive medical record. He determined that the right hip was industrially injured and that applicant was entitled to medical treatment for his right hip. The judge based this finding on the fact that defendants never objected to the physician’s statement that the right hip was industrially injured. According to the initial opinion of the judge, the defense should have objected under Labor Code section 4060 and they should have followed the procedures under that section to resolve the issue of the contested body part.
The WCAB basically followed the judge’s line of reasoning on this issue, but noted that Labor Code section 4062 was the appropriate Labor Code section and not Labor Code section 4060.
The WCAB also noted that “this does not create a violation of due process for any party because we have neither considered new evidence nor have we considered or decided any new legal theories on reconsideration without affording the parties an opportunity to offer rebuttal.” They distinguished the facts in this case from the facts in the Gangwish and Rucker cases cited above, due to the fact that in those cases the decisions were “based on different legal theories or issues than presented by the parties without affording the parties a meaningful opportunity to be heard or present evidence.”
As discussed above, a violation of due process essentially means that a party has been deprived of notice and an opportunity to be heard on a disputed issue. A claim of lack of due process, when known, should be raised as early as possible, to allow for an appropriate cure. This will avoid any delay necessitated by appellate review and return to the trial level for correction. Given the roots of due process in the U.S. Constitution and the essential role it plays in the efficacy of our judicial system, a claim of due process is a strong argument to raise in a Petition for Reconsideration or Removal. However, it should be used judiciously and only in appropriate circumstances.
© Copyright 2015 LexisNexis. All rights reserved. This article appeared in the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).