What the panel ordered
Petition for Reconsideration/Removal denied by WCAB on January 13, 2025.
Petition for Reconsideration/Removal filed by defendant challenging the selection of PQME Dr. Gabriel Rubanenko; WCJ Findings of Fact issued October 15, 2024; WCAB review of petition and record.
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.
Defendant agreed to use Dr. Rubanenko as PQME and did not show significant prejudice or irreparable harm from denial of removal; reconsideration is adequate remedy.
From the decision · page 5Removal 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 significant 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 the petitioner's arguments, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and that reconsideration will not be an adequate remedy. Furthermore, defendant agreed to Dr. Rubanenko as the PQME, and Dr Rubanenko already issued his PQME Report based on this agreement. (App. Ex. A, pp. 1-4; App. Ex. 3, p. 1.) Therefore, defendant cannot choose a different PQME at such a late stage of the QME process.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant agreed to use Dr. Rubanenko as PQME and Dr. Rubanenko issued a PQME report based on this agreement.
Favours Applicant prevailed
This agreement and report negated defendant's claim for removal of Dr. Rubanenko as PQME, supporting denial of the petition.
From the decision · page 5Removal 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 significant 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 the petitioner's arguments, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and that reconsideration will not be an adequate remedy. Furthermore, defendant agreed to Dr. Rubanenko as the PQME, and Dr Rubanenko already issued his PQME Report based on this agreement. (App. Ex. A, pp. 1-4; App. Ex. 3, p. 1.) Therefore, defendant cannot choose a different PQME at such a late stage of the QME process.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Provided PQME report dated April 29, 2024, evaluating both cases.
From the decision · page 2On April 16, 2024, defendant sent a letter to Dr. Rubanenko requesting a PQME evaluation in relation to both claims. (App. Ex. 1, DA Advocacy letter to Dr. Rubanenko dated 4/16/24, pp. 1-4.) The letter contained both case numbers in the caption. (App. Ex. 1, p. 1.) On April 23, 2024, defendant sent a letter to Dr. Rubanenko, scheduling the PQME evaluation for April 29,2024, for both cases. (App. Ex. 3, Dr. Rubanenko, PQME, Ortho Re-Evaluated dated 4/29/24, p. 54.) Dr. Rubanenko provided a QME report dated April 29, 2024, in relation to both cases. (App. Ex. 3, p. 1.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board (Labor Code section 5909).
Applied to determine timeliness of petition and notice requirements.
From the decision · page 3Former Labor Code1 section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:
Cal. Code Regs., tit. 8, 10955(a)
Removal is an extraordinary remedy granted only if significant prejudice or irreparable harm will result and reconsideration is inadequate (Cal. Code Regs., tit. 8, 10955(a)).
Applied to evaluate removal petition standard.
From the decision · page 5Removal 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 significant 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 the petitioner's arguments, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and that reconsideration will not be an adequate remedy. Furthermore, defendant agreed to Dr. Rubanenko as the PQME, and Dr Rubanenko already issued his PQME Report based on this agreement. (App. Ex. A, pp. 1-4; App. Ex. 3, p. 1.) Therefore, defendant cannot choose a different PQME at such a late stage of the QME process.
What proof carried it
The evidence the panel weighed, by kind.
Defendant's agreement to use Dr. Rubanenko as PQME and issuance of PQME report by Dr. Rubanenko
From the decision · page 5Removal 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 significant 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 the petitioner's arguments, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and that reconsideration will not be an adequate remedy. Furthermore, defendant agreed to Dr. Rubanenko as the PQME, and Dr Rubanenko already issued his PQME Report based on this agreement. (App. Ex. A, pp. 1-4; App. Ex. 3, p. 1.) Therefore, defendant cannot choose a different PQME at such a late stage of the QME process.
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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.
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