ADJ13376519 · October 4, 2022

The Appeals Board found no substantial prejudice or irreparable harm from denying removal and found no basis for disqualification of the WCJ based on the record and WCJ's impartiality analysis.

From the decision · page 1Defendant filed a Petition for Removal of the August 11, 2022 Order that claims adjuster, Lorrie Ragsdale appear at the October 4, 2022 trial. Separately, defendant filed a Petition for Disqualification of the workers' compensation administrative law judge. In the August 11, 2022 Order, the WCJ ordered that the August 11, 2022 hearing be converted into an MSC. The WCJ also ordered the parties to file trial briefs. Finally, the WCJ ordered defendant's claims adjuster to appear at trial.

The WCJ ordered the parties to file trial briefs and the defendant's claims adjuster to appear at trial to testify regarding MPN notices and transfer of care exceptions.

Favours Defendant prevailed

This order was part of the record considered by the Appeals Board in denying removal and disqualification petitions, showing the proceeding was fair and the record adequate.

The Appeals Board found no substantial prejudice or irreparable harm from denying removal and found reconsideration would be an adequate remedy if the matter proceeds to a final decision.

Favours Defendant prevailed

This reasoning supported denial of the Petition for Removal as the petitioner failed to meet the high standard for removal.

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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) 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.

The Appeals Board reviewed the record and found no basis to doubt the impartiality of the WCJ or fairness of the proceeding, supporting denial of the disqualification petition.

Favours Defendant prevailed

This finding was central to denying the Petition for Disqualification of the WCJ.

From the decision · page 4Here, our review of the record does not cause us to doubt the impartiality of the WCJ or the fairness of the proceeding. Accordingly, we will deny defendant's petition for disqualification.

Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2; Cal. Code Regs., tit. 8, former 10843(a), now 10955(a) (eff. Jan. 1, 2020)

Removal is an extraordinary remedy rarely exercised by the Appeals Board and requires showing substantial prejudice or irreparable harm and that reconsideration is inadequate.

The Appeals Board applied this standard to deny the Petition for Removal as no substantial prejudice or irreparable harm was shown and reconsideration was adequate.

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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) 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.

Labor Code section 5311; Code of Civil Procedure section 641; WCAB Rule 10960

Grounds for disqualification of a WCJ include forming an unqualified opinion on merits or bias against a party, requiring detailed verified allegations under penalty of perjury.

The Appeals Board applied these standards and found no basis for disqualification of the WCJ as no detailed verified allegations were made and the record showed impartiality.

From the decision · page 2With respect to defendant's petition for disqualification, Labor Code 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. (Lab. Code, § 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).)