What the panel ordered
Petition for removal granted; WCJ's order for additional QME panels rescinded; matter returned to trial level for further proceedings.
Defendant petitioned for removal of the WCJ's order granting applicant's petition for additional QME panels. The WCAB reviewed the record and issued a decision after 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 WCJ failed to issue a Notice of Intention and did not make an adequate record to support the order for additional QME panels, violating due process and regulatory requirements.
From the decision · page 6Thus, we are unable to determine if good cause exists at this juncture due to a lack of an adequate record. Therefore, we must rescind the Order and return this matter to the trial level for further proceedings consistent with this opinion. However, we note that since applicant claims injury to body parts outside the field of orthopedic medicine, it appears that additional QME panels will likely be required to fully address the claimed injury.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ did not issue a Notice of Intention before granting the order for additional QME panels, depriving defendant of the opportunity to object and present evidence.
Favours Defendant prevailed
This procedural error violated due process and required rescission of the order.
From the decision · page 4Here, the WCJ failed to issue an NIT prior to issuing the Order for additional panels sought by applicant. Further, insofar as the issue was clearly disputed per both applicant's petition and the defendant's filed objection and petition for removal, while WCAB Rule 10832(b) permits designation of service for an NIT, any final Order should have been served on the parties directly by the WCAB, per WCAB Rule 10628, and not by applicant's counsel.
The record did not contain an adequate basis for the WCJ's finding of good cause to issue additional QME panels.
Favours Defendant prevailed
Without an adequate record, the Appeals Board could not determine if good cause existed, requiring remand.
From the decision · page 6Thus, we are unable to determine if good cause exists at this juncture due to a lack of an adequate record. Therefore, we must rescind the Order and return this matter to the trial level for further proceedings consistent with this opinion. However, we note that since applicant claims injury to body parts outside the field of orthopedic medicine, it appears that additional QME panels will likely be required to fully address the claimed injury.
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. WCAB; Kleemann v. WCAB
Removal is granted only if the petitioner shows substantial prejudice or irreparable harm and reconsideration is not an adequate remedy.
The Board found that the lack of due process and an adequate record constituted substantial prejudice justifying removal.
From the decision · page 3Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (Cortez) (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (Kleemann) (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).)
Rucker v. WCAB; Carstens v. Pillsbury; Gangwish v. WCAB
Parties are entitled to due process and a fair hearing, including the opportunity to present evidence and objections before an order is issued.
The Board found the WCJ's failure to issue a Notice of Intention and allow objections violated due process.
From the decision · page 3Parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) A fair hearing is "one of `the rudiments of fair play' assured to every litigant...." (Id. at p. 158.) As stated by the Supreme Court of California in Carstens v. Pillsbury (1916) 172 Cal. 572, "the commission...must find facts and declare and enforce rights and liabilities, - in short, it acts as a court, and it must observe the mandate of the constitution of the United States that this cannot be done except after due process of law." (Id. at p. 577.) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584].)
Cal. Code Regs., tit. 8, § 10628
A final order on a disputed issue must be served by the WCAB, not by a party or their attorney.
The Board found the WCJ improperly delegated service of the final order to applicant's counsel.
From the decision · page 4(a) The Workers' Compensation Appeals Board shall serve the injured employee or any dependent(s) of a deceased employee, whether or not the employee or dependent is represented, and all parties of record with any final order, decision or award issued by it on a disputed issue after submission. The Workers' Compensation Appeals Board shall not designate a party, or their attorney or agent of record, to serve any final order, decision or award relating to a submitted issue.
Cal. Code Regs., tit. 8, § 31.7
An order for additional QME panels requires either party agreement or a WCJ order specifying the specialty and zip code.
The Board found that, absent party agreement, a WCJ order is necessary, but the record must support good cause.
From the decision · page 5Rule 31.7(b) and (c) provide for an additional QME panel in another specialty as follows in relevant part:
What proof carried it
The evidence the panel weighed, by kind.
The WCJ issued the order for additional QME panels without issuing a Notice of Intention and without an adequate record, depriving parties of the opportunity to present evidence or objections.
From the decision · page 4Here, the WCJ failed to issue an NIT prior to issuing the Order for additional panels sought by applicant. Further, insofar as the issue was clearly disputed per both applicant's petition and the defendant's filed objection and petition for removal, while WCAB Rule 10832(b) permits designation of service for an NIT, any final Order should have been served on the parties directly by the WCAB, per WCAB Rule 10628, and not by applicant's counsel.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
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.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
- If you are named in this decision and want this page removed, write to privacy@similarcase.com.