What the panel ordered
Petition for Removal denied
Petition for Removal filed and denied by the WCAB panel based on WCJ report analysis
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 petitioner failed to show substantial prejudice or irreparable harm from denial of removal and failed to show reconsideration would be inadequate remedy, based on WCJ's analysis and record review.
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 based upon the WCJ's analysis of the merits of petitioner's arguments in the WCJ's report, we will deny removal.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's attorney knew WCJ Thompson was assigned for trial but did not object at any time before or during trial dates, waiving right to automatic reassignment.
Favours Defendant prevailed
This conduct showed no substantial prejudice or irreparable harm from WCJ Thompson presiding, supporting denial of removal petition.
From the decision · page 3Applicant attended the hearing on April 27, 2022, wherein WCJ Thompson was assigned for trial on August 24, 2022. Thereafter, applicant served the minutes of hearing on April 29, 2022. On May 10, 2022, applicant filed a petition to advance the date of the trial and did not raise the issue of WCJ Thompson presiding over the trial. On May 12, 2022, WCJ Thompson issued an order denying the petition. On August 22, 2022, applicant filed a trial brief, and again did not raise the issue of WCJ Thompson presiding over the trial. On August 24, 2022, applicant appeared for trial before WCJ Thompson and made no objection to WCJ Thompson presiding over the trial. The matter was continued to October 26, 2022, for trial before WCJ Thompson, and again applicant made no objection to WCJ Thompson presiding over the trial.
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; granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is inadequate remedy.
The Appeals Board denied removal because petitioner did not demonstrate substantial prejudice or irreparable harm and reconsideration would be adequate remedy.
From the decision · page 1Removal 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); 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, 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.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's attorney was aware of WCJ Thompson presiding over trial but made no objection within the required time limits, indicating waiver of right to automatic reassignment.
From the decision · page 3Applicant attended the hearing on April 27, 2022, wherein WCJ Thompson was assigned for trial on August 24, 2022. Thereafter, applicant served the minutes of hearing on April 29, 2022. On May 10, 2022, applicant filed a petition to advance the date of the trial and did not raise the issue of WCJ Thompson presiding over the trial. On May 12, 2022, WCJ Thompson issued an order denying the petition. On August 22, 2022, applicant filed a trial brief, and again did not raise the issue of WCJ Thompson presiding over the trial. On August 24, 2022, applicant appeared for trial before WCJ Thompson and made no objection to WCJ Thompson presiding over the trial. The matter was continued to October 26, 2022, for trial before WCJ Thompson, and again applicant made no objection to WCJ Thompson presiding over the trial.
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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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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