ADJ10620763 — California WCAB decision

What the panel ordered

Petition for Removal granted; WCJ's Order Vacating Denial of Election affirmed and amended to defer election issue pending creation of evidentiary record; matter returned to WCJ for further proceedings

Petition for Removal filed by applicant in response to WCJ's October 11, 2023 Order Vacating Denial of Election; removal granted to create a full evidentiary record on election issue

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Jurisdiction / venueApplicant prevailed

The WCJ's order deferring the election issue was affirmed but amended to require creation of a full evidentiary record before adjudication, ensuring proper evaluation of applicant's election rights under Labor Code section 5500.5.

From the decision · page 6In summary, we are persuaded that a complete evidentiary record is necessary to the proper determination of the issue of applicant's election pursuant to section 5500.5. The WCJ's Order presently defers the issue of the election pending a determination of injury AOE/COE. However, because we believe a record must be created to address the issue of the election in the first instance, we will grant removal and affirm the Order, but amend it to reflect that the issue of applicant's election is deferred pending the creation of a full evidentiary record pursuant to Hamilton, supra, 66 Cal.Comp.Cases 473.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Cal. Code Regs., tit. 8, 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

Removal granted only if petitioner shows substantial prejudice or irreparable harm and reconsideration is inadequate remedy

Removal granted here to create a full evidentiary record on election issue

From the decision · page 2Removal 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 substantial 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).)

Hamilton v. Lockheed Corp. (2001) 66 Cal.Comp.Cases 473

Decisions must be based on admitted evidence and supported by substantial evidence

A full evidentiary record is necessary for proper evaluation of applicant's election under Labor Code section 5500.5

From the decision · page 3It is well established that decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corp. (2001) 66 Cal.Comp.Cases 473, 476 [2001 Cal. Wrk. Comp. LEXIS 4947] (Appeals Board en banc) (Hamilton). Furthermore, decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(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. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) An adequate and

ADJ10620763 · April 23, 2024

What the panel ordered

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