ADJ10925934 — California WCAB decision

What the panel ordered

Petition for Removal granted; Orders of April 24, 2023 rescinded; matter returned to trial level for further proceedings

Petition for Removal granted, Orders of April 24, 2023 rescinded, matter returned to trial level for further proceedings

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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.

Reconsideration / removalDefendant prevailedlumbar spine · thoracic spine · teeth

The WCJ raised the issue sua sponte without notice or opportunity for the parties to present evidence, resulting in substantial prejudice and irreparable harm to defendant, violating due process rights.

From the decision · page 4Here, it appears that the WCJ raised the issue of the validity of Dr. Darakjian's reporting sua sponte at the trial of April 24, 2023. While there may be merit in the WCJ's ultimate finding that the record requires further development, such a finding requires a record and the opportunity to be heard, in order for there to be a meaningful right of appeal and to comport with due process. Instead, it appears that the WCJ based his decision solely on a review of the proposed evidence at trial and did not provide an opportunity for the parties to present evidence and create a record on the newly raised issue by the WCJ. Thus, the Order to strike panel #1570067 and the medical reporting of Dr. Darakjian, and the Order appointing a regular physician, without creating a record and without notice to the parties, resulted in substantial prejudice and irreparable harm to defendant.

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

The Board found that the WCJ's sua sponte orders without notice caused substantial prejudice and irreparable harm to defendant, justifying removal.

From the decision · page 3DISCUSSION Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (Cortez) (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (Kleemann) (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). Parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd.

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151; Carstens v. Pillsbury (1916) 172 Cal. 572

Due process requires notice and opportunity to be heard before orders affecting rights are issued

The Board held that the WCJ's orders without notice or opportunity to present evidence violated due process rights of defendant.

From the decision · page 3(2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) A fair hearing is "one of `the rudiments of fair play' assured to every litigant...." (Id. at p. 158.) As stated by the Supreme Court of California in Carstens v. Pillsbury (1916) 172 Cal. 572, "the commission...must find facts and declare and enforce rights and liabilities, - in short, it acts as a court, and it must observe the mandate of the constitution of the United States that this cannot be done except after due process of law." (Id. at p. 577.) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584].)

ADJ10925934 · March 4, 2024

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