What the panel ordered
Petition for removal denied by WCAB panel.
Petition for removal from order setting matter for trial filed by applicant; WCJ recommended denial of removal; WCAB panel reviewed and decided to deny removal.
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 no substantial prejudice or irreparable harm to applicant if removal was denied and that reconsideration would be an adequate remedy if an adverse final decision is issued.
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 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).) Here, based upon the WCJ's analysis of the merits of petitioner's arguments, we are not persuaded that substantial prejudice or irreparable
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
No record exists for the Appeals Board to review as discovery is incomplete.
Favours Defendant prevailed
Without a formal record, the Board cannot determine if additional discovery is warranted, so removal is not justified.
From the decision · page 2Applicant argues that the record is not complete; however, no record exists for the Appeals Board to review. We make no judgment at this time whether applicant is entitled to additional discovery since without a formal record available to review, we have no ability to make this determination.
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 rarely exercised by the Appeals Board; granted only if petitioner shows substantial prejudice or irreparable harm and reconsideration is inadequate.
The Appeals Board applied this standard to deny removal because the applicant did not show substantial prejudice or irreparable harm and reconsideration would be adequate.
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 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).) Here, based upon the WCJ's analysis of the merits of petitioner's arguments, we are not persuaded that substantial prejudice or irreparable
What proof carried it
The evidence the panel weighed, by kind.
No record exists for the Appeals Board to review; applicant has not completed discovery; trial will allow record development and determination of discovery needs.
From the decision · page 2Applicant argues that the record is not complete; however, no record exists for the Appeals Board to review. We make no judgment at this time whether applicant is entitled to additional discovery since without a formal record available to review, we have no ability to make this determination.
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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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