ADJ15137561 — California WCAB decision

What the panel ordered

Petition for removal granted; May 16, 2023 order rescinded; matter returned to WCJ for further proceedings.

Defendant petitioned for removal of a May 16, 2023 WCJ order taking the case off calendar to complete discovery before litigating threshold issues including statute of limitations and identity of applicant.

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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.

Jurisdiction / venueRemanded

The Appeals Board found ambiguity and lack of clarity in the pleadings regarding the identity of the applicant and standing, and the applicability of the statute of limitations, warranting further proceedings to clarify these threshold issues.

From the decision · page 21.) The WCJ ordered the matter off calendar over defense objection. The WCJ further appended to the Minutes a list of the various assertions of defendant with respect to the standing of the parties, and the applicability of the statute of limitations. (Id. at p. 2.) On May 24, 2023, defendant filed the instant Petition for Removal (Petition) averring threshold issues of the identity of the parties claiming benefits, their standing, if any, and the need to adjudicate the issue of whether compensation is barred by the running of the statute of limitations. Defendant contends the August 6, 2021 Application for Adjudication was filed after decedent's date of death, and was not signed by decedent. Defendant therefore asserts that applicant's counsel lacks the standing to file the August 6, 2021 application, and that there is no "party" identified in the record as claiming benefits. Defendant further avers that the application for death benefits filed on December 21, 2021, was filed more than one year from the date of death

The rules the panel named

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

Cal. Code Regs., tit. 8, 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 granted only if petitioner shows substantial prejudice or irreparable harm if removal is not granted, and reconsideration is inadequate.

The Board applied this standard to deny removal based on the WCJ's finding that QME participation does not cause significant prejudice.

From the decision · page 3Removal 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); Cortez v. Workers' Comp. Appeals Bd., supra, 136 Cal.App.4th at p. 599, fn. 5; Kleemann v. Workers' Comp. Appeals Bd., supra, 127 Cal.App.4th at p. 280, fn. 2.) Additionally, 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).)

Cal. Code Regs., tit. 8, 10390; Coldiron v. Compuware Corporation (2002) 67 Cal.Comp.Cases 289, 1466 (en banc)

Proper identification of parties is essential to address jurisdiction and liability issues.

The Board emphasized the importance of timely and proper identification of parties in pleadings and hearings.

From the decision · page 3The correct identification of parties is essential to assure that issues of jurisdiction and liability are properly addressed. The importance of timely and proper identification of parties is part of the Appeals Board's Rules of Practice and Procedure and has been emphasized by the Appeals Board in its decisions. (Cal. Code Regs., tit. 8, § 10390 ["[a]ny party that appears at a hearing or files a pleading, document or lien shall... [s]et forth the party's full legal name on the record of proceedings, pleading, document or lien"]; cf. Coldiron v. Compuware Corporation (2002) 67 Cal.Comp.Cases 289 (Appeals Board en banc); Coldiron v. Compuware Corporation (2002) 67 Cal.Comp.Cases 1466 (Appeals Board en banc).) Moreover, it is expected that attorneys appearing before the WCAB will timely and properly identify their clients. (Id.; Rules Prof. Conduct, rule 5-200.)

Lab. Code, 4700

Death of injured employee does not affect employer liability; compensation is payable to dependents or personal representatives if no dependents.

The Board noted uncertainty in the record regarding the existence of dependents or personal representatives entitled to benefits.

From the decision · page 4In addition to ambiguity in the record as to the identity of the person(s) claiming benefits, the record is not clear as to the basis for such a claim. Labor Code1 section 4700 provides that "[t]he death of an injured employee does not affect the liability of the employer," and that "[a]ny accrued and unpaid compensation shall be paid to the dependents, or, if there are no dependents, to the personal representative of the deceased employee or heirs or other persons entitled thereto, without administration." (Lab. Code, § 4700.) Here, however, it is not clear if decedent's estate has a personal representative, dependent, or heir or other persons entitled thereto, and on what basis.

ADJ15137561 · March 13, 2024

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