What the panel ordered
Petition for removal denied
Petition for removal of a non-final order taking the matter off calendar
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 Appeals Board denied the petition for removal because the petitioner did not show substantial prejudice or irreparable harm if removal was denied, and reconsideration was deemed an adequate remedy.
From the decision · page 1We 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.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ's order taking the matter off calendar was a non-final order.
Favours Defendant prevailed
Because removal is only granted for final decisions or when substantial prejudice or irreparable harm would result, and here the order was non-final, removal was denied.
From the decision · page 3Here, the minutes memorialize some discussion of threshold issues, and in his report, the WCJ states that some of "findings" on the minutes may be construed as a determination as to those issues. However, here, no record was created, and no evidence was submitted. Moreover, it is not clear that the parties intended to stipulate to those determinations or to be bound by them, and the notes could also be construed as commentary. The actual order issued by the WCJ was an order taking the matter off calendar, a non-final order, and that is the order challenged by defendant in its petition.
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. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274
Removal is an extraordinary remedy rarely exercised by the Appeals Board; it will grant removal only if the petitioner shows substantial prejudice or irreparable harm if removal is not granted, and that reconsideration will not be an adequate remedy if a final adverse decision issues.
The Appeals Board applied this standard to deny the petition for removal because the petitioner failed to demonstrate substantial prejudice or irreparable harm and reconsideration was adequate.
From the decision · page 1Removal 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.
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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.
- 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.
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