What the panel ordered
Petition for removal granted; WCJ's Order compelling in-person attendance at deposition rescinded; matter returned to WCJ for further proceedings.
Applicant filed a petition for removal of the WCJ's Order compelling attendance at deposition, challenging the in-person attendance requirement during the pandemic.
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.
Removal granted due to lack of evidentiary record and procedural due process violations in the WCJ's Order compelling in-person deposition attendance during the pandemic.
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.,
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
WCJ issued Order compelling in-person deposition attendance without holding a hearing or admitting evidence.
Favours Applicant prevailed
Lack of hearing and evidentiary record prevented evaluation of Order's basis, violating due process.
From the decision · page 3Here, it does not appear that the WCJ held a hearing on defendant's petition for an order compelling applicant's appearance at deposition and the record is silent as to what evidence was considered, if any, or the grounds upon which the WCJ's Order is based. (Lab. Code, § 5313; Cal. Code Regs., tit. 8, § 10758, 10761, 10787.) No evidence has been admitted into the record and no minutes of hearing or summary of evidence were filed. (Cal. Code Regs., tit. 8, § 10787.) Moreover, it is not clear whether any issues were framed, narrowed, and/or adjudicated at the conference on February 7, 2022. (Lab. Code, § 5313; Cal. Code Regs., tit. 8, § 10745, 10758, 10759.) When defendant filed its petition for an order compelling applicant's appearance at deposition, the WCJ should have issued a notice of intention or set the matter for hearing, pursuant to WCAB Rule 10832, created a record, and then issued a decision. (Lab. Code, § 5313; Cal. Code Regs., tit. 8, § 10750, 10758, 10832.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 7 10955(a)
Removal requires showing substantial prejudice or irreparable harm and that reconsideration is inadequate remedy.
Applied to evaluate petition for removal of WCJ's Order.
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.,
Lab. Code, a7a7 5313, 5815; Cal. Const., art. XIV, a7 4
WCJ must make determinations on all issues with findings and reasons, providing notice and opportunity to be heard.
Applied to assess procedural due process in WCJ's Order.
From the decision · page 3Pursuant to sections 5313 and 5815 and the California Constitution, a WCJ is charged with the duty to make determinations on all issues in controversy, to provide a statement of the reasons or grounds upon which those determinations were made, and to do so in a manner that is "expeditiously, inexpensively, and without encumbrance of any character." (Cal. Const., art. XIV, § 4; Lab. Code, § 5313, 5815.) A WCJ is also required to "make and file findings upon all facts involved in the controversy and an award, order, or decision stating the determination as to the rights of the parties. Together with the findings, decision, order, or award there shall be served upon all the parties to the proceedings a summary of the evidence received and relied upon and the reasons or grounds upon which the determination was made." (Lab. Code, § 5313; Cal. Code Regs., tit. 8, § 10761, 10787; see also Blackledge v. Bank of America, ACE American Insurance Company (2010) 75 Cal.Comp.Cases 613, 621-622 (Appeals Bd. en banc).)
What proof carried it
The evidence the panel weighed, by kind.
No evidentiary record or hearing minutes for the WCJ's Order; no evidence admitted; no issues framed or adjudicated at conference.
From the decision · page 3Here, it does not appear that the WCJ held a hearing on defendant's petition for an order compelling applicant's appearance at deposition and the record is silent as to what evidence was considered, if any, or the grounds upon which the WCJ's Order is based. (Lab. Code, § 5313; Cal. Code Regs., tit. 8, § 10758, 10761, 10787.) No evidence has been admitted into the record and no minutes of hearing or summary of evidence were filed. (Cal. Code Regs., tit. 8, § 10787.) Moreover, it is not clear whether any issues were framed, narrowed, and/or adjudicated at the conference on February 7, 2022. (Lab. Code, § 5313; Cal. Code Regs., tit. 8, § 10745, 10758, 10759.) When defendant filed its petition for an order compelling applicant's appearance at deposition, the WCJ should have issued a notice of intention or set the matter for hearing, pursuant to WCAB Rule 10832, created a record, and then issued a decision. (Lab. Code, § 5313; Cal. Code Regs., tit. 8, § 10750, 10758, 10832.)
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About this page
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