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ROSALINDA CERVANTES, Applicant v. KERN HIGH SCHOOL DISTRICT, administered by SISC, Defendants

California Workers Compensation Decisions
Aug 24, 2021
ADJ8292326 (Cal. W.C.A.B. Aug. 24, 2021)

Opinion


ROSALINDA CERVANTES, Applicant v. KERN HIGH SCHOOL DISTRICT, administered by SISC, Defendants No. ADJ8292326 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California August 24, 2021

         Bakersfield District Office

         OPINION AND ORDER DISMISSING PETITION FOR RECONSIDERATION

          KATHERINE A. ZALEWSKI, CHAIR

         Lien claimant, Alan Moelleken, M.D./Spine & Ortho Center, filed a Petition for Reconsideration on June 29, 2021. We have considered the allegations of the Petition for Reconsideration and the contents of the Report of the workers’ compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, we will dismiss the petition.

         The Petition for Reconsideration was filed without proof of service on all adverse parties as required by Labor Code section 5905. (Lab. Code, § 5905; see also Cal. Code Regs., tit. 8, §§ 10940(c); 10625.) Petitioner failed to serve applicant, applicant’s attorney, and the other lien claimants on the Official Address Record, including Duran Interpreting Services, which provided services during the disputed treatment of applicant by petitioner.

All further statutory references are to the Labor Code, unless otherwise noted.

         “The failure to serve documents in a WCAB proceeding in the manner required by statute or the board’s regulations is not a ‘mere irregularity’ but rather an omission of substance which denies a fundamental right.” (Hartford Acc. & Indemnity Co. v. Workers’ Comp. Appeals Bd. (Phillips) (1978) 86 Cal.App.3d 1, 3 [43 Cal.Comp.Cases 1193].) Dismissal is appropriate for the failure to serve a real party in interest. (M.C.A., Inc. v. Workers’ Comp. Appeals Bd. (Stott) (1981) 46 Cal.Comp.Cases 621 (writ den.); Fisher v. Workers’ Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 517 (writ den.).) Petitioner did not cure the defective service although he was alerted to it by defendant’s answer and the WCJ’s Report.

         If we had not dismissed the Petition for Reconsideration for defective service, we would have denied it for the reasons stated in the report. Petitioner has misstated the record in violation of WCAB Rules 10945 as described in the Report. Petitioner received notice of the misrepresentations by defendant’s answer and by the report and has failed to cure the misrepresentations.

         We admonish petitioner Alan Moelleken, M.D./Spine & Ortho Center for filing a pleading that contains false or substantially false statements of fact, statements that are substantially misleading, and/or misrepresentations of fact in violation of section 5813 and WCAB 10421(5) as described in the Report. (Cal. Code Regs., tit. 8, former §§ 10561(b)(5)(A), now §§ 10421(5) (eff. Jan. 1, 2020).) Failure to comply with the WCAB’s rules in the future may result in the imposition of sanctions.

         For the foregoing reasons,

         IT IS ORDERED that the Petition for Reconsideration is DISMISSED.

         I CONCUR,

          MARGUERITE SWEENEY, COMMISSIONER DEIDRA E. LOWE, COMMISSIONER


Summaries of

ROSALINDA CERVANTES, Applicant v. KERN HIGH SCHOOL DISTRICT, administered by SISC, Defendants

California Workers Compensation Decisions
Aug 24, 2021
ADJ8292326 (Cal. W.C.A.B. Aug. 24, 2021)
Case details for

ROSALINDA CERVANTES, Applicant v. KERN HIGH SCHOOL DISTRICT, administered by SISC, Defendants

Case Details

Full title:ROSALINDA CERVANTES, Applicant v. KERN HIGH SCHOOL DISTRICT, administered…

Court:California Workers Compensation Decisions

Date published: Aug 24, 2021

Citations

ADJ8292326 (Cal. W.C.A.B. Aug. 24, 2021)