ADJ10616914 · May 19, 2025

The WCAB found the petition did not meet the high standard for removal and that reconsideration was the appropriate remedy, so the petition was denied.

From the decision · page 6Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, based upon the WCJ's analysis of the merits of the petitioner's arguments, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy.

The Appeals Board did not receive the petition until March 19, 2025, causing delay beyond the 60-day statutory period through no fault of the parties.

Favours Applicant prevailed

This delay triggered equitable tolling of the time to act on the petition.

From the decision · page 4Consequently, we apply the doctrine of equitable tolling pursuant to Shipley to this case. Here, the WCJ issued the Findings and Award on March 20, 2024. Defendants timely served their Petition on the Workers' Compensation Appeals Board (WCAB) on April 9, 2024. However, for reasons that are not entirely clear from the record, the Appeals Board did not actually receive notice of and review the petition until March 19, 2025. Accordingly, the Appeals Board failed to act on the petition within 60 days, through no fault of the parties. Moreover, according to Events in EAMS, the case was not transmitted to the Appeals Board until March 19, 2025.

The WCJ found the procedural stipulation to close discovery was premature and unreasonable given the need for further medical examination.

Favours Applicant prevailed

Supported the court's authority to order further medical examination despite the stipulation.

From the decision · page 8Following review of all evidence submitted at Trial, the Court found Labor Code Section 3208.3(d) applies to the applicant's alleged psyche claim and applicant may not recover compensation for her alleged psychiatric injury because she was not employed by the employer for at least six months, and her injury was not caused by a sudden and extraordinary event. The Court also found further development of the medical record is necessary to address the compensability of the alleged functional movement disorder injury. The Court found the parties' procedural stipulation to close discovery entered into at the Hearing on January 11, 2021 was premature and unreasonable because at the same Hearing the parties agreed the applicant needed to be examined by an additional Panel QME in Neurology to address the disputed functional movement disorder and brain injury.

The Court appointed neuropsychiatrist Dr. Charles Furst as the regular physician under Labor Code 5701 to address disputed medical issues.

Favours Applicant prevailed

This appointment was challenged in the petition but upheld by the WCAB.

From the decision · page 9The Court Ordered parties to meet and confer to schedule an examination of the applicant with neuropsychiatrist Dr. Charles Furst as the regular physician under Labor Code 5701. To avoid further delay and potential litigation regarding cover letters and medical records intended to be served on Dr. Furst, the Court instructed parties to treat Dr. Furst as if he were a Panel QME under Labor Code 4062.2 and 4062.3.

Defendant's refusal or neglect to schedule a neuropsychologist consult despite primary treating physician's repeated requests was found to be a bad faith tactic.

Favours Applicant prevailed

Supported the need for further medical development and appointment of Dr. Furst.

From the decision · page 11In the present matter, both the Neurology QME Dr. Bronshvag and the Occupational/Internal medicine QME Dr. Cocciarrella recommended applicant be examined by a psychiatrist and or neuropsychiatrist. Additionally, the primary treating physician Dr. Mealer's report dated October 3, 2022 states a request for a neuropsychologist consult was " apparently authorized, but the insurance has not been able to find any in the network." Based on the medical evidence submitted at Trial and applicant's testimony at Trial the Court found defendant's refusal or neglect to schedule a consult with a neuropsychologist despite the overwhelming medical evidence a consult is necessary amounts to a bad faith tactic. The Court found defendants failed in their duty to investigate and complete the medical consultations necessary to address the medical disputes in this matter. It remains unclear why defendants have ignored the primary treating physician Dr. Mealer's repeated request for a neuropsychologist consult. Therefore pursuant to McDuffie and to avoid further delay in completion of necessary discovery the Court appointed neuropsychiatrist Dr. Charles Furst as the regular physician under Labor Code 5701, and parties were Ordered to meet and confer to schedule the initial appointment with Dr. Furst and serve Dr. Furst with all necessary records prior to the exam.

Appointed to examine applicant to address disputed functional movement disorder and brain injury.

From the decision · page 9The Court Ordered parties to meet and confer to schedule an examination of the applicant with neuropsychiatrist Dr. Charles Furst as the regular physician under Labor Code 5701. To avoid further delay and potential litigation regarding cover letters and medical records intended to be served on Dr. Furst, the Court instructed parties to treat Dr. Furst as if he were a Panel QME under Labor Code 4062.2 and 4062.3.

Reported applicant's cervical and lumbar spine injury has not reached Permanent and Stationary status and requested neuropsychologist consult.

From the decision · page 9The Court agreed with the primary treating physician Dr. William Mealer' s reporting that applicant's admitted cervical spine and lumbar spine injury has not reached Permanent and Stationary status. The Court found applicant is entitled to further medical treatment to cure and/or be relieved from the effects of the industrial injury.

Recommended applicant be examined by a psychiatrist and/or neuropsychiatrist to address functional movement disorder.

From the decision · page 10Generally stipulation of the facts by the parties are binding and encouraged; however, in the present matter defendant attempts to enforce a procedural stipulation that limit the Courts authority. At Trial the Court found the stipulation to close discovery was be premature and unreasonable considering the parties simultaneously stipulated the applicant needed to be examined by an additional Panel QME in Neurology to address the disputed functional movement disorder and brain injury. Following review of all medical reporting the Court agreed with Neurology QME Dr. Bronshvag's recommendation applicant be examined by a psychiatrist and or neuropsychiatrist to address whether or not applicant's functional movement disorder is industrially related.

Labor Code Sections 112, 115, 5301, 5901, 5908.5, 5950; Cal. Code Regs., tit. 8, §§ 10320, 10330

Only the Appeals Board is statutorily authorized to issue a decision on a petition for reconsideration and must conduct de novo review of the merits.

The Appeals Board reviewed the petition and denied it based on the WCJ's analysis.

From the decision · page 1We have considered the allegations of defendants G2 Secure Staff, LLC, New Hampshire Insurance Company, administered by Gallagher Bassett Services' Petition for Removal, applicant's Answer to the Petition, and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and based upon the WCJ's analysis of the merits of the petitioner's arguments in the WCJ's report, which we adopt and incorporate, we deny the Petition as one seeking reconsideration.

Kaiser Foundation Hospitals v. Workers' Compensation Appeals Board (1978) 83 Cal.App.3d 413; Truck Ins. Exchange v. Workers' Comp. Appeals Bd. (Kwok) (2016) 2 Cal.App.5th 394

The Appeals Board has broad equitable powers including equitable tolling of time limits for petitions.

The Appeals Board applied equitable tolling to the petition due to administrative delay.

From the decision · page 2It is well-settled that the Appeals Board has broad equitable powers. (Kaiser Foundation Hospitals v. Workers' Compensation Appeals Board (1978) 83 Cal.App.3d 413, 418 [43 Cal.Comp.Cases 785] citing Bankers Indem. Ins. Co. v. Indus. Acc. Com. (1935) 4 Cal.2d 89, 94- 98 [47 P.2d 719]; see Truck Ins. Exchange v. Workers' Comp. Appeals Bd. (Kwok) (2016) 2 Cal.App.5th 394, 401 [81 Cal.Comp.Cases 685]; State Farm General Ins. Co. v. Workers' Comp. Appeals Bd. (Lutz) (2013) 218 Cal.App.4th 258, 268 [78 Cal.Comp.Cases 758]; Dyer v. Workers' Comp. Appeals Bd. (1994) 22 Cal.App.4th 1376, 1382 [59 Cal.Comp.Cases 96].) It is an issue of fact whether an equitable doctrine such as laches applies. (Kwok, supra 2 Cal.App.5th at p. 402.) The doctrine of equitable tolling applies to workers' compensation cases, and the analysis turns on the factual determination of whether an opposing party received notice and will suffer prejudice if equitable tolling is permitted. (Elkins v. Derby (1974) 12 Cal.3d 410, 412 [39 Cal.Comp.Cases 624].) As explained above, only the Appeals Board is empowered to make this factual determination.1

Cal. Code Regs., tit. 8, § 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596

Removal is an extraordinary remedy granted only if petitioner shows significant prejudice or irreparable harm and that reconsideration is inadequate.

The WCAB found the petitioner did not meet the standard for removal and denied the petition.

From the decision · page 6Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, based upon the WCJ's analysis of the merits of the petitioner's arguments, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy.

Defendant's refusal or neglect to schedule a neuropsychologist consult despite primary treating physician's repeated requests

From the decision · page 11In the present matter, both the Neurology QME Dr. Bronshvag and the Occupational/Internal medicine QME Dr. Cocciarrella recommended applicant be examined by a psychiatrist and or neuropsychiatrist. Additionally, the primary treating physician Dr. Mealer's report dated October 3, 2022 states a request for a neuropsychologist consult was " apparently authorized, but the insurance has not been able to find any in the network." Based on the medical evidence submitted at Trial and applicant's testimony at Trial the Court found defendant's refusal or neglect to schedule a consult with a neuropsychologist despite the overwhelming medical evidence a consult is necessary amounts to a bad faith tactic. The Court found defendants failed in their duty to investigate and complete the medical consultations necessary to address the medical disputes in this matter. It remains unclear why defendants have ignored the primary treating physician Dr. Mealer's repeated request for a neuropsychologist consult. Therefore pursuant to McDuffie and to avoid further delay in completion of necessary discovery the Court appointed neuropsychiatrist Dr. Charles Furst as the regular physician under Labor Code 5701, and parties were Ordered to meet and confer to schedule the initial appointment with Dr. Furst and serve Dr. Furst with all necessary records prior to the exam.