ADJ11104769 · March 12, 2026

Petitioner failed to show significant prejudice or irreparable harm if removal was denied and failed to show reconsideration would be inadequate remedy; issue of report substantiality is for trial judge, not replacement petition; defendant raised substantiality issue timely before trial.

From the decision · page 1We 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, and based upon the WCJ's analysis of the merits of the petitioner's arguments in the WCJ's report, we will deny the Petition as one seeking reconsideration.

Petitioner only challenged interlocutory finding/order regarding development of record using Dr. Andrea Bates as regular physician, not threshold final findings.

Favours Defendant prevailed

This meant removal standard applied, which requires showing significant prejudice or irreparable harm and inadequacy of reconsideration remedy.

From the decision · page 2Although the decision contains a finding that is final, the petitioner is only challenging an interlocutory finding/order in the decision, i.e., the order for development of the record utilizing Andrea Bates, M.D., as a regular physician. Therefore, we will apply the removal standard to our review. (See Gaona, supra.)

Defendant raised issue of substantiality of medical reporting prior to trial at mandatory settlement conference.

Favours Defendant prevailed

This showed issue was timely raised and is for trial judge to decide, not by petition to replace QME.

From the decision · page 2Finally, we note that, contrary to applicant's assertion, defendant raised the issue of the substantiality of the medical reporting prior to the date of trial. Specifically, defendant raised this issue at the September 22, 2025 mandatory settlement conference (MSC), as documented in the Pre-Trial Conference Statement. In addition, the issue of a report's substantiality is not resolved through a petition to replace the qualified medical evaluator (QME) but rather it is an issue for the judge to decide at trial.

Development of record utilizing Andrea Bates, M.D., as regular physician was challenged in interlocutory finding/order.

From the decision · page 2Although the decision contains a finding that is final, the petitioner is only challenging an interlocutory finding/order in the decision, i.e., the order for development of the record utilizing Andrea Bates, M.D., as a regular physician. Therefore, we will apply the removal standard to our review. (See Gaona, supra.)

Cal. Code Regs., tit. 8, 10955(a)

Removal is an extraordinary remedy rarely exercised by the Appeals Board; granted only if petitioner shows significant prejudice or irreparable harm and that reconsideration is inadequate remedy.

Applied to deny petition for removal.

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 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.

Lab. Code, 5904

Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal.

Applied to explain finality of threshold issues and reconsideration procedure.

From the decision · page 1If a decision includes resolution of a "threshold" issue, then it is a "final" decision, whether or not all issues are resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc).) Threshold issues include, but are not limited to, the following: injury arising out of and in the course of employment, jurisdiction, the existence of an employment relationship and statute of limitations issues. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal. (See Lab. Code, § 5904.) Alternatively, non-final decisions may later be challenged by a petition for reconsideration once a final decision issues.

Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783

Threshold issues include injury arising out of and in the course of employment, jurisdiction, employment relationship, and statute of limitations issues.

Applied to identify threshold issues making decision final.

From the decision · page 1If a decision includes resolution of a "threshold" issue, then it is a "final" decision, whether or not all issues are resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc).) Threshold issues include, but are not limited to, the following: injury arising out of and in the course of employment, jurisdiction, the existence of an employment relationship and statute of limitations issues. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal. (See Lab. Code, § 5904.) Alternatively, non-final decisions may later be challenged by a petition for reconsideration once a final decision issues.

Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658

Failure to timely petition for reconsideration bars later challenge; non-final decisions may be challenged by petition for reconsideration once final decision issues.

Applied to explain reconsideration and removal standards for hybrid decisions.

From the decision · page 1If a decision includes resolution of a "threshold" issue, then it is a "final" decision, whether or not all issues are resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc).) Threshold issues include, but are not limited to, the following: injury arising out of and in the course of employment, jurisdiction, the existence of an employment relationship and statute of limitations issues. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal. (See Lab. Code, § 5904.) Alternatively, non-final decisions may later be challenged by a petition for reconsideration once a final decision issues.