ADJ11421538 · May 23, 2022

The WCAB found that the WCJ erred in vacating submission to allow further development of the record after cost petitioner failed to support hourly rates with evidence, as this prejudiced defendant and was not appropriate under the circumstances.

From the decision · page 4The Appeals Board's power to remove a case to itself under Labor Code section 5310 is discretionary and is generally employed only as an extraordinary remedy. (See Butte County v. Workers' Comp. Appeals Bd. (Stultz) (1991) 56 Cal.Comp.Cases 312 (writ denied); Swedlow, Inc. v. Workers' Comp. Appeals Bd. (Smith) (1985) 48 Cal.Comp.Cases 476 (writ denied).) To obtain relief under this provision, WCAB Rule 10955 requires that a party must establish either that "[t]he order, decision or action will result in significant prejudice" or "irreparable harm," and that reconsideration would not be an adequate remedy. (Cal. Code Regs., tit. 8, § 10955.) In this case, we are persuaded that the order vacating submission and for the creation of a supplement to the record after cost petitioner has had multiple opportunities to sustain its burden of proof will significantly prejudice defendant.

Cost petitioner failed to submit evidence supporting the hourly rates claimed for fees.

Favours Defendant prevailed

This failure led the WCJ to vacate submission to develop the record, which the WCAB found prejudiced defendant and was improper.

From the decision · page 5evidence [was] submitted to support the hourly rates alleged and requested by either Lorena Ortiz Schneider or Phillip Newell, Esq." (Order Vacating Submission, dated December 22, 2021.) Accordingly, we conclude that cost petitioner has had ample opportunity to offer evidence responsive to its burden of proof, and that allowing additional evidence now would circumvent the mandated closure of discovery pursuant to section 5502, significantly prejudicing defendant.

Labor Code section 5310; WCAB Rule 10955

The Appeals Board's power to remove a case to itself under Labor Code section 5310 is discretionary and requires showing significant prejudice or irreparable harm and that reconsideration is inadequate.

The WCAB found that allowing further development of the record after multiple opportunities to present evidence would significantly prejudice defendant and that reconsideration would not be adequate.

From the decision · page 4The Appeals Board's power to remove a case to itself under Labor Code section 5310 is discretionary and is generally employed only as an extraordinary remedy. (See Butte County v. Workers' Comp. Appeals Bd. (Stultz) (1991) 56 Cal.Comp.Cases 312 (writ denied); Swedlow, Inc. v. Workers' Comp. Appeals Bd. (Smith) (1985) 48 Cal.Comp.Cases 476 (writ denied).) To obtain relief under this provision, WCAB Rule 10955 requires that a party must establish either that "[t]he order, decision or action will result in significant prejudice" or "irreparable harm," and that reconsideration would not be an adequate remedy. (Cal. Code Regs., tit. 8, § 10955.) In this case, we are persuaded that the order vacating submission and for the creation of a supplement to the record after cost petitioner has had multiple opportunities to sustain its burden of proof will significantly prejudice defendant.

Evidence Code sections 452(d) and 453

Judicial notice requires a party request, notice to adverse party, and sufficient information to the court.

Cost petitioner failed to request judicial notice properly, so the WCJ could not take judicial notice of prior orders as evidence of hourly rates.

From the decision · page 5Additionally, we note cost petitioner's asserted belief that the WCJ would, sua sponte, take judicial notice of prior orders for the payment of costs and fees in other cases. (Answer, at 2:10.) Evidence Code section 452(d) provides, in part, that judicial notice may be taken of "[r]ecords of any court of (1) this state or (2) any court record of the United States or of any state of the United States." However, Evidence Code section 453 further requires that judicial notice shall only be taken if it is requested by a party and the party sufficiently notices the adverse party and gives the court sufficient information to enable it to take judicial notice. Here, none of these conditions were met, as cost petitioner failed to request judicial notice, failed to provide notice to the adverse party, and failed to provide sufficient identifying information at trial to enable the WCJ to take judicial notice.2

Cost petitioner failed to submit evidence supporting hourly rates for fees claimed.

From the decision · page 5evidence [was] submitted to support the hourly rates alleged and requested by either Lorena Ortiz Schneider or Phillip Newell, Esq." (Order Vacating Submission, dated December 22, 2021.) Accordingly, we conclude that cost petitioner has had ample opportunity to offer evidence responsive to its burden of proof, and that allowing additional evidence now would circumvent the mandated closure of discovery pursuant to section 5502, significantly prejudicing defendant.