What the panel ordered
Petition for Removal and Disqualification denied
Petition for Removal and Disqualification filed and considered by the WCJ and Appeals Board
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.
The petition failed to show substantial prejudice or irreparable harm for removal and did not set forth sufficient facts for disqualification under the cited legal standards.
From the decision · page 1We have considered the allegations of the Petition for Removal and Disqualification 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 for Removal and Disqualification.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Petitioner did not show substantial prejudice or irreparable harm if removal was denied.
Favours Defendant prevailed
This is required for removal, and the lack of such showing led to denial of removal.
From the decision · page 1Removal 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).) Here, for the reasons stated in the WCJ's report, we are not persuaded that substantial prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy if the matter ultimately proceeds to a final decision adverse to petitioner. Accordingly, we will deny the petition to the extent it seeks removal. We also note that several issues raised in the petition are now moot.
Petition for disqualification did not set forth facts under penalty of perjury sufficient to establish grounds for disqualification.
Favours Defendant prevailed
Without sufficient factual allegations, disqualification cannot be granted.
From the decision · page 3Here, as discussed in the WCJ's report, the petition for disqualification does not set forth facts, declared under penalty of perjury, that are sufficient to establish disqualification pursuant to Labor Code section 5311, WCAB Rule 10960, and Code of Civil Procedure section 641(f) and/or (g). Accordingly, we will deny the petition to the extent it seeks to disqualify the WCJ.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2; Cal. Code Regs., tit. 8, 10955(a)
Removal is an extraordinary remedy rarely exercised by the Appeals Board; it requires showing substantial prejudice or irreparable harm and that reconsideration is inadequate.
The petition did not demonstrate substantial prejudice or irreparable harm, nor that reconsideration would be inadequate, so removal was denied.
From the decision · page 1Removal 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).) Here, for the reasons stated in the WCJ's report, we are not persuaded that substantial prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy if the matter ultimately proceeds to a final decision adverse to petitioner. Accordingly, we will deny the petition to the extent it seeks removal. We also note that several issues raised in the petition are now moot.
Labor Code section 5311; Code Civ. Proc. section 641; WCAB Rule 10960
A party may seek to disqualify a WCJ under Labor Code section 5311 and Code of Civil Procedure section 641 on grounds including bias or fixed opinion.
The petition failed to set forth detailed facts under penalty of perjury sufficient to establish disqualification.
From the decision · page 2To the extent the petition contends that the WCJ should be disqualified, Labor Code section 5311 provides that a party may seek to disqualify a WCJ upon any one or more of the grounds specified in Code of Civil Procedure section 641. (Lab. Code, § 5311; see also Code Civ. Proc., § 641.) Among the grounds for disqualification under section 641 are that the WCJ has "formed or expressed an unqualified opinion or belief as to the merits of the action" (Code Civ. Proc., § 641(f)) or that the WCJ has demonstrated "[t]he existence of a state of mind... evincing enmity against or bias toward either party" (Code Civ. Proc., § 641(g)).
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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