ADJ14364236 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration treated as Petition for Removal; removal standard applied to interlocutory order denying disqualification of QME

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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 prevailedneck · right hand · wrists · fingers · back · knees

The WCJ found the QME's physical examination credible based on detailed findings and attestations, and applicant failed to prove unavailability for deposition; removal standard not met.

From the decision · page 2On June 10, 2024, the WCJ issued her Findings of Fact, determining that Dr. Sonu was not disqualified as the QME, and that the QME was not unavailable for cross-examination. The WCJ's Opinion on Decision noted the QME's detailed physical findings in the February 7, 2023 report, as well as the attestations of the QME that he had personally accomplished a physical examination of the applicant. (Opinion on Decision, p. 3.) The WCJ further noted that applicant did not promptly raise the issue of the adequacy of the examination, waiting more than one year to offer any objection to the evaluation, as set forth in his April 1, 2024 DOR. With respect to the availability of the QME for deposition, the WCJ noted that applicant had the burden of proving unavailability of the QME but had offered no evidence in support of that contention. (Id. at p. 4.)

The rules the panel named

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

Lab. Code, §§ 5900(a), 5902, 5903; Maranian v. WCAB (2000) 81 Cal.App.4th 1068

Petition for reconsideration may only be taken from a final order or decision; interlocutory orders are not final and are reviewed under removal standard.

The petition challenged an interlocutory order denying disqualification of the QME; removal standard applied.

From the decision · page 3DISCUSSION A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p. 1075 ["interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not `final'"]; Rymer, supra, at p.

Cal. Code Regs., tit. 8, § 10955(a); Cortez v. WCAB (2006) 136 Cal.App.4th 596

Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is inadequate.

Petitioner failed to show irreparable harm or substantial prejudice from denial of QME disqualification.

From the decision · page 4Removal 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).)

ADJ14364236 · August 26, 2024

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