ADJ14125839 — California WCAB decision

What the panel ordered

Petition for Reconsideration is DENIED.

Applicant petitioned for reconsideration or removal of the WCJ's April 25, 2022 Findings of Fact and Order denying a replacement QME panel; the Board treated the petition as a hybrid seeking reconsideration and denied it under the removal standard.

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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.

QME/AME processDefendant prevailed

Emergency Rule 46.2, enacted due to COVID, suspended the 60/90-day timeframes in 8 CCR 31.3(e) and replaced them with 90/120-day timeframes; the remedy of a replacement QME or panel under 31.5(a)(2) is available only if the 90/120-day limits are not met. Applicant did not show the QME was unavailable within these extended timeframes.

From the decision · page 6Accordingly, we concur with the WCJ's reasoning that the time limitations of AD Rule 46.2(b)(1) are applicable to this matter, and that the remedy of Rule 31.5(a)(2) of a replacement QME or panel of QMEs is available only where the 90 or 120-day time limitations of the

The facts that decided it

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

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 and will be granted only if the petitioner shows significant prejudice or irreparable harm, and that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues.

Applied to deny removal because applicant did not show significant prejudice or irreparable harm, nor that reconsideration would be inadequate.

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 significant 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, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy.

8 CCR 46.2

Emergency Rule 46.2, enacted May 14, 2020, in response to COVID, suspends 8 CCR 31.3(e) and replaces the 60/90-day QME scheduling timeframes with 90/120-day timeframes; replacement QME or panel is available only if the 90/120-day limits are not met.

Applied to determine that applicant was not entitled to a replacement QME panel under the emergency rule.

From the decision · page 6Accordingly, we concur with the WCJ's reasoning that the time limitations of AD Rule 46.2(b)(1) are applicable to this matter, and that the remedy of Rule 31.5(a)(2) of a replacement QME or panel of QMEs is available only where the 90 or 120-day time limitations of the

ADJ14125839 · June 30, 2022

What the panel ordered

What was disputed, and how it came out

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The rules the panel named

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