It is common in Worker’s Compensation litigation to have orders issued by a WCJ after a request made in writing, or at a conference hearing after an oral request. It is also common that there is nothing officially offered and received into evidence to support such an order. And at times there is little documentation or record of what was said by the parties, since there is no court reporter at conferences. The informality of the administrative system is common place.

However a recent panel decision points out the need for practitioners to carefully insure that there be a stipulation as to the facts in support of any order, or evidence offered and received to support procedural or other orders.

In the case of Bryne Miller v Pelican Bay State Prison – ADJ13793096 (June 2022) a WCAB panel granted a Petition for Removal and Rescinded an Order that changed the venue of the case, and returned the matter to the WCJ to receive evidence to support his Order.

The Panel summarized this information from the WCJs Report and Recommendation on Petition for Removal (p. 2).

– – Applicant sustained an industrial injury while employed at Pelican State Prison in Crescent City, CA; located in Del Norte County. The closest DWC office is Eureka.
– – Applicant, through counsel, Jim Rademacher, caused to be filed an Application for Adjudication of Claim (Application) on October 29, 2020.
– – The application selected SBA (Santa Barbara) as venue based upon the “County of principle place of business of employee’s attorney.”
– – The application reflected applicant’s “street address” to be in Brookings, Oregon.
– – The application lists the employer as Pelican State Prison in Crescent city, CA.
– – Lastly, the application provides applicant counsel’s office is located in Westlake Village, CA.
– – SCIF objected and filed a petition for change of venue. A notice of intent to grant the change of venue was issued. Applicant attorney filed an objection to the notice of intent and a status conference was held by the PWCJ on January 19, 2022.
– – At the conclusion of the hearing and written on the Minutes of Hearing are the words, “Case transferred to Eureka IT IS SO ORDERED” and the signature of Scott J. Seiden.
– – A formal order changing venue to Eureka was issued on February 4, 2022 and served on the parties. Applicant filed a petition for removal from that order.

However, except for the information contained in the WCJs Report and Recommendation on Petition for Removal (p. 2) the panel wrote “A review of the record in EAMS reveals no Minutes of Hearing/Summary of Evidence showing what, if any, evidence was admitted at the January 19, 2022 hearing; what, if any,testimony was presented; or otherwise revealing the reasons or grounds for the Order.”

In discussing this record, the WCAB panel went on to write “We observe that a decision by the WCJ “must be based on admitted evidence in the record” (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 478 (Appeals Board en banc)), and must be supported by substantial evidence. (§§ 5903, 5952, subd. (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].) As required by section 5313 and explained in Hamilton, “the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision.” (Hamilton, supra, at p. 475.)”

“Here, the record shows that the WCJ adjudicated the transfer of venue issue at the January 19, 2022 status conference. (Report, p. 2.) In adjudicating the issue without a hearing, however, the WCJ failed to make a record of the evidence presented by the parties, leaving us unable to evaluate the merits of the Petition. Therefore, we will rescind the Order and return the matter to the trial level for development of the record as to the issue of whether venue should be transferred to the Eureka District Office and other related issues, as appropriate.”

This case clearly illustrates the consequences for workers’ compensation litigators who do not meticulously support their case with a record of evidence that is offered, received or rejected and then this process well documented in any record of an order or decision. Any rejection by a WCJ to evidence that is offered should be followed by a detailed oral “offer of proof” to describe the evidence, explain the purpose of introducing the evidence, state the grounds for admissibility, and sufficiently inform an appellant tribunal of the consequences of excluding the evidence.