ADJ12515803 — California WCAB decision

What the panel ordered

Petition for removal granted; matter returned to trial level for further proceedings.

Petition for removal of April 5, 2023 order to take the matter off calendar granted by WCAB panel, returning matter 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 / removalApplicant prevailed

Applicant demonstrated a constitutionally mandated right to have his specific injury claim adjudicated expeditiously and separately from the cumulative trauma injury, showing substantial prejudice if removal was not granted.

From the decision · page 3Cal. Const., art. XIV, § 4, provides that the system of workers' compensation "shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character; all of which matters are expressly declared to be the social public policy of this State...." We agree that applicant is entitled to adjudicate his specific injury first irrespective of whether he has a cumulative trauma injury pending. As such, we grant applicant's petition for removal and return this matter to the trial level for further proceedings consistent with this opinion.

The facts that decided it

The rules the panel named

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

Labor Code 3208.2

Labor Code section 3208.2 requires separate determination of specific and cumulative trauma injuries, including apportionment.

The Board applied this statute to hold that specific and cumulative trauma injuries must be adjudicated separately.

From the decision · page 3When disability, need for medical treatment, or death results from the combined effects of two or more injuries, either specific, cumulative, or both, all questions of fact and law shall be separately determined with respect to each such injury, including, but not limited to, the apportionment between such injuries of liability for disability benefits, the cost of medical treatment, and any death benefit. (§ 3208.2.)

Cal. Code Regs., tit. 8, 10843

Petition for removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result if not granted.

The Board applied this regulation to evaluate the petition for removal standard.

From the decision · page 3A party may petition for removal of an interim order. (Cal. Code Regs., tit. 8, § 10843.) Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) 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, § 10843(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, § 10843(a).)

Cal. Const., Art. XIV 4

Workers' compensation system must accomplish substantial justice expeditiously and without encumbrance as mandated by Cal. Const., Art. XIV, 4.

The Board applied this constitutional provision to support the applicant's right to expeditious adjudication.

From the decision · page 3Cal. Const., art. XIV, § 4, provides that the system of workers' compensation "shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character; all of which matters are expressly declared to be the social public policy of this State...." We agree that applicant is entitled to adjudicate his specific injury first irrespective of whether he has a cumulative trauma injury pending. As such, we grant applicant's petition for removal and return this matter to the trial level for further proceedings consistent with this opinion.

ADJ12515803 · April 15, 2024

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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