ADJ12292905 — California WCAB decision

What the panel ordered

The Petition for Reconsideration is denied.

Defendant filed a Petition for Reconsideration or Removal challenging the WCJ's denial of a replacement QME panel request, treated as timely and reviewed under the removal standard for interlocutory decisions.

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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.

QME/AME processDefendant prevailed

Defendant did not show that a replacement QME panel was warranted because there was no evidence the QME failed to receive information as required by section 4062.3(b), and defendant's reliance on Pettit was misplaced due to factual differences and misrepresentations.

From the decision · page 2Although the decision contains a finding that is final, defendant is only challenging the WCJ's finding that defendant's request for a replacement qualified medical evaluator (QME) panel is denied. This is an interlocutory decision regarding discovery. Therefore, we will apply the removal standard to our review. (See Gaona, supra.)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The rules the panel named

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

Cal. Code Regs., tit. 8, former 10843(a), now 10955(a)

Petition for removal is an extraordinary remedy granted only if significant prejudice or irreparable harm will result and reconsideration is inadequate.

Applied to defendant's petition for removal of interlocutory decision.

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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).)

Cal. Code Regs., tit. 8, former 10561(b)(5)(A), now 10421(b)(5)(A)

Sanctions may be imposed for misrepresentations in filings with the Appeals Board.

Warning issued to defendant regarding misrepresentations in petition.

From the decision · page 4We are similarly troubled in this matter by defendant's misrepresentations in its Petition regarding the facts of the Pettit case. Defendant is reminded that a party or attorney may be sanctioned for executing a declaration or verification to any petition, pleading or other document filed with the Appeals Board that contains substantial misrepresentations of facts. (Cal. Code Regs., tit. 8, former § 10561(b)(5)(A), now § 10421(b)(5)(A) (eff. Jan. 1, 2020); see also Lab. Code, § 5813.) If the defendant here seeks to learn from what occurred in Pettit, the defendant's apparent misrepresentation of facts in that matter is not conduct to emulate.

ADJ12292905 · February 3, 2021

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

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