Cal. Code Regs., tit. 8, § 10955(a)
Removal is granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is not an adequate remedy.
Defendant failed to show irreparable harm or inadequacy of reconsideration; removal denied.
From the decision · page 42. Removal
Removal 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
harm will result if removal is denied and/or that reconsideration will not be an adequate remedy if
the matter ultimately proceeds to a final decision adverse to petitioner.
Decisions of the Appeals Board "must be based on admitted evidence in the
record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476
(Appeals Board en banc).) Furthermore, decisions of the Appeals Board must be supported by
Lab. Code § 5311; Code Civ. Proc. § 641; Cal. Code Regs., tit. 8, § 10960
A party may seek to disqualify a WCJ upon grounds specified in Code Civ. Proc. § 641; must be supported by affidavit or declaration under penalty of perjury stating facts.
Defendant did not provide required affidavit or sufficient factual grounds; disqualification denied.
From the decision · page 2Proc., § 641(g)).
Under WCAB Rule 10960, proceedings to disqualify a WCJ "shall be initiated by the filing
of a petition for disqualification supported by an affidavit or declaration under penalty of perjury
stating in detail facts establishing one or more of the grounds for disqualification...." (Cal. Code
Regs., tit. 8, § 10960, italics added.) It has long been recognized that "[t]he allegations in a
statement charging bias and prejudice of a judge must set forth specifically the facts on which the
charge is predicated," that "[a] statement containing nothing but conclusions and setting forth no
facts constituting a ground for disqualification may be ignored," and that "[w]here no facts are set
forth in the statement there is no issue of fact to be determined." (Mackie v.