What the panel ordered
Petition for reconsideration denied by the Workers' Compensation Appeals Board on December 30, 2024.
Petition for reconsideration filed by applicant challenging the validity of QME panel number 7705175; WCJ issued Findings and Order on September 4, 2024, finding the QME panel valid; WCAB treated petition as one for reconsideration and denied it.
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's finding that the QME panel number 7705175 is valid was not an abuse of discretion; service of the delay notice on applicant rather than her attorney was proper and did not cause significant prejudice or irreparable harm; reconsideration was an adequate remedy; therefore, removal was denied and reconsideration petition was denied.
From the decision · page 1Applicant seeks removal in response to the Findings and Order issued by the workers' compensation administrative law judge (WCJ) on September 4, 2024, wherein the WCJ found in pertinent part that Qualified Medical Evaluator (QME) panel number 7705175 is valid.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Service of the delay notice was made on applicant, not on her attorney, due to timing of notice of representation and delay notice.
Favours Defendant prevailed
This service was proper and did not cause significant prejudice or irreparable harm to applicant, supporting denial of removal and reconsideration petition.
From the decision · page 1Applicant contends that panel number 7705175 should be invalidated because defendant served the notice regarding delay of workers' compensation benefits (delay notice) on applicant and not on her attorney; and that applicant is entitled to examine defendant's insurance adjustor at trial.
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 (Lab. Code, 5909).
The Appeals Board acted timely on the petition filed by applicant.
From the decision · page 2I. Former Labor Code section1 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: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.
Cal. Code Regs., tit. 8, 10955(a)
Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result and reconsideration is inadequate (Cal. Code Regs., tit. 8, 10955(a)).
The petitioner did not show substantial prejudice or irreparable harm from the service issue; reconsideration was adequate.
From the decision · page 4Removal 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); Cortez, supra; Kleemann, supra.) Additionally, 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).)
What proof carried it
The evidence the panel weighed, by kind.
Service of the delay notice was proper on applicant on June 4, 2024, despite lack of service on applicant's attorney; applicant received the notice.
From the decision · page 4Here, the WCJ's Order finding that panel number 7705175 is valid does not exceed the wide discretion afforded the WCJ to determine an appropriate remedy. (See Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803, 1815 (Appeals Bd. en banc).) While we agree that the WCAB Rules require that a party's attorney be served with all documents, the lack of service on applicant's attorney can be reasonably explained by the timing of service of his notice of representation on June 3, and the service of the delay notice on June 4, 2024. Service of the delay notice was proper on applicant on June 4, 2024, and it is undisputed that the delay notice was received by applicant. In particular, there is nothing in the Labor Code to suggest that the validly served notice somehow became invalid because defendant had not yet received applicant's attorney's notice of representation. Thus, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy. Therefore, we deny applicant's Petition.
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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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