What the panel ordered
The petition for disqualification was dismissed as untimely and unsupported by an affidavit under penalty of perjury; alternatively, the petition would have been denied on the merits based on the WCJ's report.
Applicant filed a petition for disqualification of the WCJ alleging bias and prior rulings in favor of defendant; the WCJ filed a Report and Recommendation on Petition for Disqualification recommending denial; the WCAB reviewed the petition and the WCJ's report.
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 petition was dismissed because it was not timely filed and lacked the required affidavit under penalty of perjury; alternatively, the WCJ's report showed no bias or grounds for disqualification.
From the decision · page 1We have considered the allegations of the Petition for Disqualification and the contents of the WCJ's Report. Based on our review of the record, we will dismiss disqualification as the petition was not timely filed and is not supported by an affidavit or declaration under penalty of perjury. (Cal. Code Regs., tit. 8, § 10960.) If we were not dismissing, we would otherwise have denied the petition based upon the WCJ's analysis of the merits contained in the WCJ's Report.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The petition was not timely filed within 10 days after notice of hearing or knowledge of grounds for disqualification.
Favours Defendant prevailed
Timeliness is required by regulation for a petition to be considered.
From the decision · page 2Next, petitions for disqualification must be timely filed: "If the workers' compensation judge assigned to hear the matter and the grounds for disqualification are known, the petition for disqualification shall be filed not more than 10 days after service of notice of hearing or after grounds for disqualification are known." (Cal. Code Regs., tit. 8, § 10960, (emphasis added).)
The petition lacked an affidavit or declaration under penalty of perjury stating detailed facts supporting disqualification.
Favours Defendant prevailed
Such an affidavit is mandatory to establish grounds for disqualification.
From the decision · page 2Under WCAB Rule 10960, proceedings to disqualify a WCJ "shall be initiated by the filing of a petition for disqualification supported by an affidavit or declaration under penalty of perjury stating in detail facts establishing one or more of the grounds for disqualification...." (Cal. Code Regs., tit. 8, § 10960, italics added.) It has long been recognized that "[t]he allegations in a statement charging bias and prejudice of a judge must set forth specifically the facts on which the charge is predicated," that "[a] statement containing nothing but conclusions and setting forth no facts constituting a ground for disqualification may be ignored," and that "[w]here no facts are set forth in the statement there is no issue of fact to be determined." (Mackie v. Dyer (1957) 154 Cal.App.2d 395, 399.)
The WCJ rescinded prior Findings and Order and commenced further proceedings to consider applicant's objections, showing no bias.
Favours Defendant prevailed
This conduct negates the claim of bias and supports denial of disqualification.
From the decision · page 3The conduct of the WCJ in this matter demonstrates a lack of bias. Upon receipt of applicant's petition for reconsideration, the WCJ rescinded the Findings and Order and commenced further proceedings to fully consider the positions raised by applicant.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Code of Regulations, title 8, section 10960
A petition for disqualification must be timely filed and supported by an affidavit or declaration under penalty of perjury stating detailed facts establishing grounds for disqualification.
The petition was dismissed for failure to meet these requirements.
From the decision · page 2Under WCAB Rule 10960, proceedings to disqualify a WCJ "shall be initiated by the filing of a petition for disqualification supported by an affidavit or declaration under penalty of perjury stating in detail facts establishing one or more of the grounds for disqualification...." (Cal. Code Regs., tit. 8, § 10960, italics added.) It has long been recognized that "[t]he allegations in a statement charging bias and prejudice of a judge must set forth specifically the facts on which the charge is predicated," that "[a] statement containing nothing but conclusions and setting forth no facts constituting a ground for disqualification may be ignored," and that "[w]here no facts are set forth in the statement there is no issue of fact to be determined." (Mackie v. Dyer (1957) 154 Cal.App.2d 395, 399.)
Labor Code section 5311; Code of Civil Procedure section 641
Labor Code section 5311 allows disqualification of a WCJ on grounds specified in Code of Civil Procedure section 641, including bias or prejudgment.
The petition alleged bias and prejudgment but was dismissed as untimely and unsupported.
From the decision · page 1Labor Code1 section 5311 provides that a party may seek to disqualify a WCJ upon any one or more of the grounds specified in Code of Civil Procedure section 641. (§ 5311; see also Code Civ. Proc., § 641.) Among the grounds for disqualification under section 641 are that the WCJ has "formed or expressed an unqualified opinion or belief as to the merits of the action"
What proof carried it
The evidence the panel weighed, by kind.
The petition was not timely filed and lacked an affidavit under penalty of perjury as required by regulation.
From the decision · page 2Next, petitions for disqualification must be timely filed: "If the workers' compensation judge assigned to hear the matter and the grounds for disqualification are known, the petition for disqualification shall be filed not more than 10 days after service of notice of hearing or after grounds for disqualification are known." (Cal. Code Regs., tit. 8, § 10960, (emphasis added).)
The WCJ rescinded prior Findings and Order and commenced further proceedings to consider applicant's objections, demonstrating lack of bias.
From the decision · page 3The conduct of the WCJ in this matter demonstrates a lack of bias. Upon receipt of applicant's petition for reconsideration, the WCJ rescinded the Findings and Order and commenced further proceedings to fully consider the positions raised by applicant.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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