ADJ13725703 — California WCAB decision

What the panel ordered

Petitions for Removal and Disqualification denied by the Appeals Board.

Petitions for Removal and Disqualification filed by applicant were considered by the Appeals Board after review of the WCJ reports and record.

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This docket was decided more than once. Shown here is the latest released decision; we also hold May 14, 2021.

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 / removalDefendant prevailed

Petition for Disqualification was untimely and lacked required affidavit or declaration; no bias or ex parte communication found by WCJ or Appeals Board.

From the decision · page 5accordance with Cal. Code Regs., tit. 8, § 10960.2 In addition, if petitioner alleges the bias occurred at the September 29, 2021 trial date, then this present petition should have been filed no later than October 14, 2021. Instead, the petition was not filed until December 8, 2021. As such, the filing of the Petition for Disqualification on December 8, 2021, was untimely and the petition should be denied accordingly.

The facts that decided it

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

Petitioner did not demonstrate substantial prejudice or irreparable harm if removal was denied.

Favours Defendant prevailed

This failure meant removal was not warranted as an extraordinary 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, 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).) Here, we are not persuaded that substantial

Petition for Disqualification was filed untimely and without required affidavit or declaration.

Favours Defendant prevailed

Untimeliness and lack of required documentation led to denial of disqualification petition.

From the decision · page 5accordance with Cal. Code Regs., tit. 8, § 10960.2 In addition, if petitioner alleges the bias occurred at the September 29, 2021 trial date, then this present petition should have been filed no later than October 14, 2021. Instead, the petition was not filed until December 8, 2021. As such, the filing of the Petition for Disqualification on December 8, 2021, was untimely and the petition should be denied accordingly.

No evidence of bias or ex parte communication by the WCJ was found.

Favours Defendant prevailed

Lack of bias or improper communication supported denial of disqualification petition.

From the decision · page 6In the matter at hand, this WCJ has demonstrated neither bias, nor the appearance of bias, toward petitioner whatsoever and his claims to the contrary are without merit.

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); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

Removal is an extraordinary remedy rarely exercised by the Appeals Board and requires showing substantial prejudice or irreparable harm and that reconsideration is inadequate.

The Appeals Board denied removal because petitioner did not show substantial prejudice or irreparable harm and reconsideration would be 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, 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).) Here, we are not persuaded that substantial

Cal. Code Regs., tit. 8, 10940(a); Cal. Code Regs., tit. 8, 10960; Labor Code 123.6(a); Code of Civil Procedure 641

Petition for Disqualification must be timely filed within 10 days after grounds are known and include affidavit or declaration under penalty of perjury stating facts for disqualification.

The petition was untimely and lacked required affidavit or declaration; no bias or ex parte communication found.

From the decision · page 5accordance with Cal. Code Regs., tit. 8, § 10960.2 In addition, if petitioner alleges the bias occurred at the September 29, 2021 trial date, then this present petition should have been filed no later than October 14, 2021. Instead, the petition was not filed until December 8, 2021. As such, the filing of the Petition for Disqualification on December 8, 2021, was untimely and the petition should be denied accordingly.

ADJ13725703 · December 23, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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