What the panel ordered
Petition for Removal denied by the Workers' Compensation Appeals Board panel.
Petition for Removal filed by defendant Zurich American Insurance Company seeking removal of an October 23, 2023 WCJ order taking the matter off calendar and directing parties to arbitration.
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 WCJ correctly concluded that jurisdiction over the contribution dispute rests with the arbitrator, and the petitioner failed to show substantial prejudice or irreparable harm from the order taking the matter off calendar.
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, based upon the WCJ's analysis of the merits of petitioner's arguments, 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.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ concluded that jurisdiction over the contribution dispute rests with the arbitrator and ordered the matter taken off calendar to proceed with arbitration.
Favours Defendant prevailed
This conclusion meant the WCJ lacked jurisdiction to adjudicate the contribution dispute, supporting denial of removal.
From the decision · page 2Defendant Zurich American Insurance Company (Zurich) seeks removal in response to an October 23, 2023 order issued by a Workers' Compensation Administrative Law Judge (WCJ) taking this matter off calendar. The Minutes of Hearing indicate that the request for hearing was filed by Zurich for the purpose of requesting that the WCJ order two previously joined parties to appear before the Workers' Compensation Appeals Board. (Minutes of Hearing, October 23, 2023.) The WCJ's comments on the Minutes of Hearing observe that "the sole issue is contribution," and that "the WCJ has no jurisdiction." Accordingly, the WCJ ordered the matter taken off calendar and directed the parties to proceed with arbitration. (Ibid.)
The petitioner failed to demonstrate substantial prejudice or irreparable harm if removal was denied and that reconsideration would not be an adequate remedy.
Favours Defendant prevailed
Without showing these, removal as an extraordinary remedy was not warranted.
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, based upon the WCJ's analysis of the merits of petitioner's arguments, 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.
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
Removal is an extraordinary remedy rarely exercised by the Appeals Board; it will be granted only if the petitioner shows substantial prejudice or irreparable harm and that reconsideration will not be an adequate remedy if a final adverse decision issues.
The petitioner failed to show substantial prejudice or irreparable harm from the order taking the matter off calendar, and reconsideration was deemed an adequate remedy.
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, based upon the WCJ's analysis of the merits of petitioner's arguments, 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.
Labor Code, 5275(a)
Disputes involving the right of contribution must be submitted for arbitration under Labor Code section 5275(a).
The issue of contribution is subject to mandatory arbitration, and the WCJ lacks jurisdiction to adjudicate contribution disputes.
From the decision · page 2Pursuant to Labor Code section 5275(a), "[d]isputes involving the following issues shall be submitted for arbitration," including the "[r]ight of contribution in accordance with Section 5500.5." (Lab. Code, § 5275(a)(2).) Here, Zurich requests that "the WCAB retain jurisdiction to hear issues such as liability and coverage for the CT case in question and the proper parties to proceed to Arbitration." (Id. at p. 2:16.) However, pursuant to section 5275(a), the issue of contribution is subject to mandatory arbitration. While the WCJ retains the necessary jurisdiction to join necessary parties pursuant to WCAB Rule 10382 (Cal. Code Regs., tit. 8, § 10382), such authority does not extend to the adjudication of contribution disputes. We therefore concur with the WCJ's conclusion that jurisdiction over the dispute rests with the arbitrator.
Labor Code, 5272
Arbitrators have all statutory and regulatory duties and responsibilities of a workers' compensation judge under Labor Code section 5272.
The arbitrator has jurisdiction over contribution disputes, consistent with the WCJ's order to proceed with arbitration.
From the decision · page 2We also observe that section 5272 provides that "[a]rbitrators shall have all of the statutory and regulatory duties and responsibilities of a workers' compensation judge, as set forth in Chapter 1 (commencing with Section 5300) of Part 4...." (Lab. Code, § 5272.) In addition, and insofar as a party wishes to commence the mandatory arbitration process, section 5271(b) provides that "[i]f the parties cannot select an arbitrator by agreement, either party may request the presiding workers' compensation judge to assign a panel of five arbitrators selected at random from the list of eligible attorneys." (Lab. Code, § 5271(b).) WCAB Rule 10900 (Cal. Code Regs., tit. 8, § 10900) provides that "[a]ny party may file an arbitration submittal form after a petition for contribution pursuant to Labor Code section 5500.5 has been filed." Thus, any party to the contribution dispute may file the arbitration submittal form to commence the selection of an arbitrator at any time following the
Labor Code, 5271(b)
If parties cannot select an arbitrator by agreement, the presiding WCJ may assign a panel of five arbitrators selected at random under Labor Code section 5271(b).
The arbitration process may be commenced by filing an arbitration submittal form after a petition for contribution is filed.
From the decision · page 2We also observe that section 5272 provides that "[a]rbitrators shall have all of the statutory and regulatory duties and responsibilities of a workers' compensation judge, as set forth in Chapter 1 (commencing with Section 5300) of Part 4...." (Lab. Code, § 5272.) In addition, and insofar as a party wishes to commence the mandatory arbitration process, section 5271(b) provides that "[i]f the parties cannot select an arbitrator by agreement, either party may request the presiding workers' compensation judge to assign a panel of five arbitrators selected at random from the list of eligible attorneys." (Lab. Code, § 5271(b).) WCAB Rule 10900 (Cal. Code Regs., tit. 8, § 10900) provides that "[a]ny party may file an arbitration submittal form after a petition for contribution pursuant to Labor Code section 5500.5 has been filed." Thus, any party to the contribution dispute may file the arbitration submittal form to commence the selection of an arbitrator at any time following the
WCAB Rule 10900
Any party may file an arbitration submittal form after a petition for contribution is filed under WCAB Rule 10900.
The parties may commence arbitration by filing the arbitration submittal form at any time after the petition for contribution is filed.
From the decision · page 2We also observe that section 5272 provides that "[a]rbitrators shall have all of the statutory and regulatory duties and responsibilities of a workers' compensation judge, as set forth in Chapter 1 (commencing with Section 5300) of Part 4...." (Lab. Code, § 5272.) In addition, and insofar as a party wishes to commence the mandatory arbitration process, section 5271(b) provides that "[i]f the parties cannot select an arbitrator by agreement, either party may request the presiding workers' compensation judge to assign a panel of five arbitrators selected at random from the list of eligible attorneys." (Lab. Code, § 5271(b).) WCAB Rule 10900 (Cal. Code Regs., tit. 8, § 10900) provides that "[a]ny party may file an arbitration submittal form after a petition for contribution pursuant to Labor Code section 5500.5 has been filed." Thus, any party to the contribution dispute may file the arbitration submittal form to commence the selection of an arbitrator at any time following the
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