Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, § 10955(a)
Removal is granted only if petitioner shows substantial prejudice or irreparable harm, and reconsideration is not an adequate remedy.
Applied to determine whether removal was appropriate in this case.
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); 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).)
Lab. Code § 5313
WCJ must issue a decision that complies with Labor Code section 5313, making and filing findings upon all facts involved in the controversy.
Applied to find the WCJ's order inadequate due to lack of record and findings.
From the decision · page 2The statutory and regulatory duties of a WCJ include the issuance of a decision that
complies with Labor Code section 5313.2 An adequate and complete record is necessary to
understand the basis for the WCJ's decision and the WCJ shall "... make and file findings upon
all facts involved in the controversy[.]" (Lab. Code, § 5313; Hamilton v. Lockheed Corporation
(2001) 66 Cal.Comp.Cases 473, 476 [2001 Cal.Wrk.Comp. LEXIS 4947] (Appeals Bd. en banc)3
(Hamilton).) As required by section 5313 and explained in Hamilton, "the WCJ is charged with
the responsibility of referring to the evidence in the opinion on decision, and of clearly designating
the evidence that forms the basis of the decision." (Hamilton, supra, at 475.) The purpose of this
requirement is to enable "the parties, and the Board if reconsideration is sought, [to] ascertain the
Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158
All parties in workers' compensation proceedings retain their fundamental right to due process and a fair hearing under the California and United States Constitutions.
Applied to find that issuing the Order without a hearing denied due process.
From the decision · page 3Next, we turn to the issue of whether the WCJ violated the applicant's right to due process
by issuing the Order without a hearing. All parties in workers' compensation proceedings retain
their 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].) As stated by the California Supreme Court in Carstens v.
Pillsbury (1916) 172 Cal. 572,
Cal. Code Regs., tit. 8, § 10349
WCAB Rules allow issuance of a notice of intention for any proper purpose, with opportunity for objection and hearing.
Applied to find that the WCJ failed to issue a notice of intention or provide a hearing.
From the decision · page 4The WCAB Rules provide in relevant part that "The Workers' Compensation Appeals
Board may issue a notice of intention for any proper purpose...; [i]f an objection is filed within
the time provided, the Workers' Compensation Appeals Board, in its discretion may... [i]ssue an
order consistent with the notice of intention together with an opinion on decision; or... [s]et the
matter for hearing." (Cal. Code Regs., tit. 8, § 10349.) Here, the WCJ did not issue a Notice of
Intention, but rather issued the Order with no hearing. Had the WCJ issued a Notice of Intention,
the aggrieved party could have objected and requested a hearing. If no party objected, then the
Order would become final.