ADJ16511542 — California WCAB decision

What the panel ordered

Petition for Removal granted; WCJ's November 21, 2022 Order Compelling Applicant's Deposition rescinded; matter returned to WCJ for further proceedings.

Petition for Removal of the Order Compelling Applicant's Deposition filed by applicant, challenging the WCJ's November 21, 2022 Order Compelling Applicant's Deposition.

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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.

Reconsideration / removalApplicant prevailed

The Appeals Board found that the WCJ's Order Compelling Applicant's Deposition lacked adequate rationale and that removal was warranted due to the absence of good cause for the applicant's failure to attend the initial deposition and procedural deficiencies in the WCJ's order.

From the decision · page 1Applicant seeks removal in response to the November 28, 2022 Order Compelling Applicant's Deposition. Applicant contends the deposition has been rescheduled, that applicant intends to attend the deposition, and that the WCJ's order is unnecessary and a "waste of judicial resources." (Petition for Removal, dated December 8, 2022, at 4:23.)

The facts that decided it

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

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 and that reconsideration is inadequate.

The Appeals Board applied this standard to evaluate the Petition for Removal and found removal warranted.

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); 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).)

Lab. Code, 5313; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

WCJ must make and file findings on all facts involved and clearly designate evidence forming basis of decision.

The Appeals Board found the WCJ's order lacked adequate findings and rationale, necessitating removal and remand for further proceedings.

From the decision · page 4An adequate and complete record is necessary to understand the basis for the WCJ's decision and the WCJ shall "...make and file findings upon all facts involved in the controversy[.]" (Lab. Code, § 5313; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 [2001 Cal.Wrk.Comp. LEXIS 4947] (Appeals Bd. en banc) (Hamilton).) As required by section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Hamilton, supra, at 475.) The purpose of this requirement is to enable "the parties, and the Board if reconsideration is sought, [to] ascertain the basis for the decision[.]" (Hamilton, supra, at 476, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350].)

ADJ16511542 · April 25, 2023

What the panel ordered

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