What the panel ordered
Petition for Removal granted; WCJ's Order for in-person appearances rescinded and replaced with an Order for virtual or telephonic appearances.
Defendant filed a Petition for Removal of the WCJ's Order requiring in-person appearances of the claim adjuster and supervisor at the lien trial.
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 found that the order for in-person appearances was an undue burden and that virtual or telephonic appearances would suffice, thus granting the Petition for Removal.
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 for the reasons stated below, we will grant the Petition for Removal, rescind the Order of the WCJ to appear in person, and substitute a new order stating that the claims adjuster and the adjuster's supervisor must be available by virtual or telephonic appearance at the upcoming trial of this matter.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Order for in-person appearances causes undue burden and practical hardship on the adjuster.
Favours Defendant prevailed
This justified granting the Petition for Removal and substituting virtual or telephonic appearances.
From the decision · page 3Here, petitioner asserts that an order to appear in person constitutes an undue burden on the adjuster, as it causes a practical hardship, and prevents them from handling other cases that would be impacted by a physical appearance. Petitioner further contends that no monies are due lien claimant as there are unresolved legal issues that prevent settlement, but that the claims adjuster is available either telephonically or by other electronic means, and defendant has complied with WCAB Rule 10880(a). (Petition, p. 2-4.)
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 granted only if petitioner shows substantial prejudice or irreparable harm and reconsideration is inadequate remedy.
Applied to determine whether Petition for Removal should be granted.
From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (Cortez) (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (Kleemann) (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.,
Cal. Code Regs., tit. 8, § 10880(a)(3)
All defendants and lien claimants must appear at lien trials in person or by representative with full settlement authority or authority immediately available by telephone.
Referenced in context of the adjuster's required appearance.
From the decision · page 21 Cal Code Regs., tit. 8 § 10880(a)(3) states: (a) All defendants and lien claimant shall appear at all lien trials either in person or by attorney or non- attorney representative. Each defendant, lien claimant, attorney and non-attorney representative appearing at any lien trial:... (3) Shall either have full settlement authority or have full settlement authority immediately available by telephone.
What proof carried it
The evidence the panel weighed, by kind.
Petitioner asserted that in-person appearance order constituted an undue burden and practical hardship on the adjuster.
From the decision · page 3Here, petitioner asserts that an order to appear in person constitutes an undue burden on the adjuster, as it causes a practical hardship, and prevents them from handling other cases that would be impacted by a physical appearance. Petitioner further contends that no monies are due lien claimant as there are unresolved legal issues that prevent settlement, but that the claims adjuster is available either telephonically or by other electronic means, and defendant has complied with WCAB Rule 10880(a). (Petition, p. 2-4.)
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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.
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