ADJ16511542 · April 25, 2023

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.)

WCJ's Order Compelling Applicant's Deposition lacked adequate rationale and findings as required by Labor Code section 5313 and Hamilton.

Favours Applicant prevailed

This procedural deficiency justified granting removal and rescinding the order.

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].)

Applicant confirmed intention to attend rescheduled deposition, making the original order unnecessary and a waste of judicial resources.

Favours Applicant prevailed

Supported granting removal and rescinding the order as unnecessary.

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.)

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].)

Applicant's failure to attend the November 2, 2022 deposition without good cause, as noted by the WCJ.

From the decision · page 2The WCJ's Report initially observes that defendant's Notice of Representation does not comply with WCAB Rule 10390, by failing to correctly identify the parties, and whether the employer is self-insured. (Cal. Code Regs., tit. 8, § 10390; Report, at p. 1, fn. 1.) The Report notes that is unclear whether the rescheduled deposition transpired on December 16, 2022, and that if the deposition was completed, this dispute may be moot. The Report also notes that the removal proceedings are expending additional judicial resources, that that the WCJ reviewed applicant's objection prior to issuing the order compelling, that the objection did not provide good cause for applicant's failure to attend the November 2, 2022 deposition, and that the order does not result in irreparable harm to applicant. (Report, at p. 3.)

Lack of notice from parties whether the rescheduled deposition on December 16, 2022 occurred, causing additional judicial resource expenditure.

From the decision · page 3Additionally, we write to note our agreement with the WCJ's observation that the entirety of this dispute may have been rendered moot if applicant attended the scheduled and agreed-upon deposition on December 16, 2022. Unfortunately, no party to these proceedings has advised the WCJ or the Appeals Board whether the deposition was completed, necessitating the expenditure of additional resources to address the instant dispute. It is expected that the parties will take all reasonable steps in the future to provide the court with notice of any change in circumstance affecting a pending petition with the WCAB.