The California WCAB has issued several recent decisions on challenges to due process rights in workers’ compensation cases. Section One of the Fourteenth Amendment to the U.S. Constitution affords all parties the right to due process of law.  The right to due process is the legal right to be provided notice and an opportunity to be heard on all issues in dispute. This right to due process is paramount to the goal of California’s workers’ compensation proceedings to “accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character” (Cal. Const. Art. XIV, § 4). The case of Beverly Hills Multispecialty Group v. WCAB (1994) 559 CCC 461 affirmed that lien claimants had due process rights on par with other parties, including the right to be served with copies of physicians’ reports. In response to the Beverly Hills Multispecialty Group case, the WCAB enacted new Rules of Practice and Procedure to incorporate the court’s mandate. Cal. Code Regs., tit. 8, § 10608(a) and Labor Code § 4903.05(c)(7) and 4903.06(b), which require that qualified lien claimants are specifically entitled to service of physician’s reports during the pendency of the case in chief are consistent with the principles enunciated in the California Constitution and the Beverly Hills Multispecialty case.

A violation of due process, when known, should be raised as early as possible, to allow of an appropriate cure and avoid any delay at the trial level for correction. On February 25, 2015, Boehm & Associates’ general counsel Yael Higgins filed a Petition to Compel Service of Physicians’ Reports after defense counsel refused to provide the physician’s reports in the case absent an order from the Workers’ Compensation Appeals Board. This Petition to Compel was denied by the workers’ compensation judge on March 10, 2015, on the basis that the lien claimant is not a party to the case at present because the underlying case has not resolved nor has the applicant abandoned her claim. If unchallenged, the Court’s binding determination would empower defendant to withhold access to evidence relevant to the determination of the threshold issue of whether the worker sustained an industrial injury. Lien claimants and other parties cannot adequately maintain their rights or make their defense on this threshold issue without full access to medical evidence discovered in the case. An adverse finding on such a threshold matter could unduly impact the compensability of the lien. Due Process requires that courts cannot impose binding determination upon parties without giving them an opportunity to present their side of the story. This was articulated in a Petition for Removal filed on March 30, 2015.

On March 30, 2015, Yael Higgins filed a Petition for Removal of the Order Denying Petition for Service of Medical Information on the grounds that 1) the Board acted without and in excess of its powers; 2) by the Order, lien claimant suffers substantial prejudice and/or irreparable harm; and 3) reconsideration will not be an adequate remedy after the issuance of a final order, decision or award. On May 13, 2015, the Workers’ Compensation Appeal Board granted the Petition for Removal filed by Boehm, rescinded the Order Denying Petition for Service of Medical Information, and ordered defendant to serve Boehm with the medical report and medical-legal reports pursuant to Cal. Code Regs., tit. 8, § 10608.

Due process plays an essential role in the efficacy of our judicial system and preservation of fundamental procedural right. Hence, a claim of due process is a strong argument to raise in a Petition for Removal. However, it should be used judiciously and only in appropriate circumstances.