What the panel ordered
Petition for removal granted; the September 18, 2024 Finding and Order is rescinded and the matter is returned to the trial level for further proceedings
Petition for removal from the Finding and Order issued on September 18, 2024 by the WCJ, which found good cause to issue a replacement panel in orthopedic surgery
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 Appeals Board found that the WCJ's Finding and Order was not supported by any record, violating defendant's due process rights and causing substantial prejudice and irreparable harm, thus justifying removal.
From the decision · page 1We have considered the allegations of the Petition for Removal and the contents of the WCJ's Report. Based on our review of the record, we will grant removal and as our Decision After Removal we will rescind the September 18, 2024 Finding and Order and return this matter to the trial level for further proceedings.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The Finding and Order issued by the WCJ on September 18, 2024 was not supported by any record.
Favours Defendant prevailed
Without a formal record available to review, the Appeals Board could not make a determination on the replacement panel issue, violating defendant's due process rights and causing substantial prejudice and irreparable harm.
From the decision · page 2that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, and based upon the analysis below, the Finding and Order is not supported by any record and defendant has a due process right to set the issue of a replacement panel for trial. The violation of defendant's right to due process constitutes substantial prejudice and irreparable harm. Thus, we will grant removal.
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)
Removal will be granted only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted, and that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues.
The Appeals Board applied this standard to find that the defendant's due process rights were violated, constituting substantial prejudice and irreparable harm, thus justifying removal.
From the decision · page 1Removal 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
What proof carried it
The evidence the panel weighed, by kind.
Violation of defendant's right to due process due to lack of record and opportunity for trial on replacement panel issue
From the decision · page 2that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, and based upon the analysis below, the Finding and Order is not supported by any record and defendant has a due process right to set the issue of a replacement panel for trial. The violation of defendant's right to due process constitutes substantial prejudice and irreparable harm. Thus, we will grant removal.
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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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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