ADJ786866 — California WCAB decision

What the panel ordered

Petition for disqualification denied; petition for removal granted; December 23, 2024 Findings of Fact and Order rescinded; matter returned to trial level for further proceedings.

Applicant sought removal of the Findings of Fact and Order issued on December 23, 2024 by the WCJ, which denied applicant's petition to quash a subpoena for records from Kaiser Permanente, and sought disqualification of the WCJ based on alleged bias. The WCJ filed reports recommending denial of both petitions. The Appeals Board reviewed the record and denied disqualification but granted removal, rescinding the December 23, 2024 Findings of Fact and Order and returning the matter to the trial level for further proceedings.

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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.

Reconsideration / removalDefendant prevailed

The Appeals Board found that the petition for disqualification did not set forth specific facts constituting grounds for disqualification and was therefore denied.

From the decision · page 2We have considered the allegations of the Petition for Disqualification, Petition for Removal, the Answer, and the contents of the WCJ's Reports. Based on our review of the record and based upon the WCJ's analysis of the merits contained in the WCJ's Disqualification Report, we will deny disqualification1. We will grant applicant's Petition for Removal, and as our Decision After Removal we will rescind the December 23, 2024 F&O and return this matter to the trial level for further proceedings.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The petition for disqualification did not set forth specific facts constituting grounds for disqualification.

Favours Defendant prevailed

Without specific facts, there was no issue of fact to determine, leading to denial of disqualification.

From the decision · page 28, § 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. Dyer (1957) 154 Cal.App.2d 395, 399, 316 P.2d 366.) Next, petitions for disqualification must be timely filed: "If the workers' compensation judge assigned to hear the matter and the grounds for disqualification are known, the petition for disqualification shall be filed not more than 10 days after service of notice of hearing or after grounds for disqualification are known." (Cal. Code Regs., tit. 8, § 10960.)

The WCJ's denial of the petition to quash would violate applicant's constitutional right to privacy and cause irreparable harm.

Favours Applicant prevailed

This finding met the standard for removal, leading to granting the petition and rescinding the WCJ's order.

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); 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, and for the reasons discussed below, the WCJ's denial of applicant's petition to quash is both incorrect and would lead to a violation of applicant's constitutional right to privacy, which constitutes irreparable harm. Accordingly, applicant has met the standard for removal.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5311

Labor Code section 5311 provides grounds for disqualification of a WCJ.

Petition for disqualification must be supported by detailed facts establishing grounds for disqualification.

From the decision · page 2DISQUALIFICATION Labor Code2 section 5311 provides that a party may seek to disqualify a WCJ upon any one or more of the grounds specified in Code of Civil Procedure section 641. (§ 5311; see also Code Civ. Proc., § 641.) Among the grounds for disqualification under section 641 are that the WCJ has "formed or expressed an unqualified opinion or belief as to the merits of the action" (Code Civ. Proc., § 641(f)) or that the WCJ has demonstrated "[t]he existence of a state of mind... evincing enmity against or bias toward either party." (Code Civ. Proc., § 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.

Code of Civil Procedure section 641

Code of Civil Procedure section 641 lists grounds for disqualification including bias or pre-formed opinions.

Grounds for disqualification include unqualified opinions or bias by the WCJ.

From the decision · page 2DISQUALIFICATION Labor Code2 section 5311 provides that a party may seek to disqualify a WCJ upon any one or more of the grounds specified in Code of Civil Procedure section 641. (§ 5311; see also Code Civ. Proc., § 641.) Among the grounds for disqualification under section 641 are that the WCJ has "formed or expressed an unqualified opinion or belief as to the merits of the action" (Code Civ. Proc., § 641(f)) or that the WCJ has demonstrated "[t]he existence of a state of mind... evincing enmity against or bias toward either party." (Code Civ. Proc., § 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.

WCAB Rule 10960

WCAB Rule 10960 requires petitions for disqualification to be timely and supported by detailed facts.

Petition must be filed within 10 days of notice of hearing or knowledge of grounds and supported by affidavit or declaration under penalty of perjury.

From the decision · page 2DISQUALIFICATION Labor Code2 section 5311 provides that a party may seek to disqualify a WCJ upon any one or more of the grounds specified in Code of Civil Procedure section 641. (§ 5311; see also Code Civ. Proc., § 641.) Among the grounds for disqualification under section 641 are that the WCJ has "formed or expressed an unqualified opinion or belief as to the merits of the action" (Code Civ. Proc., § 641(f)) or that the WCJ has demonstrated "[t]he existence of a state of mind... evincing enmity against or bias toward either party." (Code Civ. Proc., § 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.

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

Cal. Code Regs., tit. 8, 10955(a) governs removal of WCJs and requires showing of substantial prejudice or irreparable harm.

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

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); 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, and for the reasons discussed below, the WCJ's denial of applicant's petition to quash is both incorrect and would lead to a violation of applicant's constitutional right to privacy, which constitutes irreparable harm. Accordingly, applicant has met the standard for removal.

ADJ786866 · October 22, 2025

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