ADJ18948204 · August 20, 2024

The WCAB panel found that the petitioner did not demonstrate substantial prejudice or irreparable harm from denial of removal, nor that reconsideration would be inadequate, based on the WCJ's analysis and the record.

From the decision · page 2We have considered the allegations of the Petition for Removal and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record and based upon the WCJ's analysis of the merits of petitioner's arguments in the WCJ's report, we will deny removal.

Applicant received personnel file with witness statements supporting her position only shortly before trial, limiting time to review.

Favours Applicant prevailed

Applicant argued this caused substantial prejudice and due process violation, but WCJ and WCAB found no substantial prejudice warranting removal.

From the decision · page 1Applicant has not been afforded the right to properly litigate her claim of injury. Her efforts have been cut short, through no fault of her own. Applicant's counsel just received the personnel file which includes witness statements that support the Applicant's position. The defendant has had ample time to review the provided file; Applicant's counsel has had insufficient time to review the relevant portions of the file, as Trial was set for 21 days after the MSC. A perfect example of SUBSTANTIAL PREJUDICE can be seen through service of the personnel file - witnesses that support the Applicant's position have been identified in the personnel file, and they were previously unknown. The Pre-Trial Conference Statement is inaccurate due to the lack of evidence available to the Applicant at the time of the MSC, as a result witnesses are missing from the Applicant's witness list. Finally, a QME evaluation is necessary to address the compensability of the injury.

QME evaluation was cancelled by Defendant, which Applicant argued deprived her of necessary medical evidence.

Favours Applicant prevailed

WCAB found trial WCJ has discretion to order QME evaluation and allow further discovery at trial, preserving due process.

From the decision · page 1The QME evaluation was cancelled by the Defendant, but lack of medical evidence was one of the reasons for the Defendant's denial of workers' compensation liability. If this trial were to proceed, the Applicant would be subject to judgment based on late service of relevant evidence, as well as insufficient evidence, and placed at a disadvantage as relevant discovery was served after the MSC. Being forced to trial without the benefit of completing discovery places too great a hurdle for the Applicant to jump. It is a complete violation of the due process rights afforded to the Applicant and policies set forth by the legislature.

Cal. Code Regs., tit. 8, 10955(a)

Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is inadequate.

Applied to deny removal petition based on WCJ's analysis.

From the decision · page 2Removal 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.

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151

Due process requires notice and meaningful opportunity to present evidence, including calling and cross-examining witnesses and introducing exhibits.

Referenced to affirm due process rights in the context of removal petition.

From the decision · page 2All parties 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].) "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312]; see also Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 1452-1454 [56 Cal.Comp.Cases 537].) 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]; Rucker, supra, at pp. 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].)

Late service of personnel file with witness statements supporting Applicant's position, which Applicant's counsel had insufficient time to review before trial.

From the decision · page 1Applicant has not been afforded the right to properly litigate her claim of injury. Her efforts have been cut short, through no fault of her own. Applicant's counsel just received the personnel file which includes witness statements that support the Applicant's position. The defendant has had ample time to review the provided file; Applicant's counsel has had insufficient time to review the relevant portions of the file, as Trial was set for 21 days after the MSC. A perfect example of SUBSTANTIAL PREJUDICE can be seen through service of the personnel file - witnesses that support the Applicant's position have been identified in the personnel file, and they were previously unknown. The Pre-Trial Conference Statement is inaccurate due to the lack of evidence available to the Applicant at the time of the MSC, as a result witnesses are missing from the Applicant's witness list. Finally, a QME evaluation is necessary to address the compensability of the injury.

Cancellation of QME evaluation by Defendant, which was a reason for denial of workers' compensation liability.

From the decision · page 1The QME evaluation was cancelled by the Defendant, but lack of medical evidence was one of the reasons for the Defendant's denial of workers' compensation liability. If this trial were to proceed, the Applicant would be subject to judgment based on late service of relevant evidence, as well as insufficient evidence, and placed at a disadvantage as relevant discovery was served after the MSC. Being forced to trial without the benefit of completing discovery places too great a hurdle for the Applicant to jump. It is a complete violation of the due process rights afforded to the Applicant and policies set forth by the legislature.