ADJ18948204 — California WCAB decision

What the panel ordered

Petition for removal denied by WCAB panel; trial to proceed as scheduled; parties to have opportunity for further discovery and QME evaluation at trial discretion.

Petition for removal filed by Applicant in response to Order setting trial date; WCJ issued order setting trial for July 23, 2024; removal sought due to alleged substantial prejudice and due process violation from late discovery and cancelled QME evaluation.

Read the official decision →

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.

Reconsideration / removalDefendant prevailed

The WCAB panel found that the petitioner did not demonstrate substantial prejudice or irreparable harm from denial of removal, nor that reconsideration would be inadequate, based on the WCJ's analysis and the record.

From the decision · page 2We 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

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)

Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is inadequate.

Applied to deny removal petition based on WCJ's analysis.

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, § 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.

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151

Due process requires notice and meaningful opportunity to present evidence, including calling and cross-examining witnesses and introducing exhibits.

Referenced to affirm due process rights in the context of removal petition.

From the decision · page 2All parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) "Due process requires notice and a meaningful opportunity to present evidence in regards to the issues." (Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312]; see also Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449, 1452-1454 [56 Cal.Comp.Cases 537].) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker, supra, at pp. 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].)

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Applicant prevailed

Late service of personnel file with witness statements supporting Applicant's position, which Applicant's counsel had insufficient time to review before trial.

From the decision · page 1Applicant has not been afforded the right to properly litigate her claim of injury. Her efforts have been cut short, through no fault of her own. Applicant's counsel just received the personnel file which includes witness statements that support the Applicant's position. The defendant has had ample time to review the provided file; Applicant's counsel has had insufficient time to review the relevant portions of the file, as Trial was set for 21 days after the MSC. A perfect example of SUBSTANTIAL PREJUDICE can be seen through service of the personnel file - witnesses that support the Applicant's position have been identified in the personnel file, and they were previously unknown. The Pre-Trial Conference Statement is inaccurate due to the lack of evidence available to the Applicant at the time of the MSC, as a result witnesses are missing from the Applicant's witness list. Finally, a QME evaluation is necessary to address the compensability of the injury.

Medical recordsfavours Applicant prevailed

Cancellation of QME evaluation by Defendant, which was a reason for denial of workers' compensation liability.

From the decision · page 1The QME evaluation was cancelled by the Defendant, but lack of medical evidence was one of the reasons for the Defendant's denial of workers' compensation liability. If this trial were to proceed, the Applicant would be subject to judgment based on late service of relevant evidence, as well as insufficient evidence, and placed at a disadvantage as relevant discovery was served after the MSC. Being forced to trial without the benefit of completing discovery places too great a hurdle for the Applicant to jump. It is a complete violation of the due process rights afforded to the Applicant and policies set forth by the legislature.

ADJ18948204 · August 20, 2024

What the panel ordered

What was disputed, and how it came out

The facts that decided it

Your case already resembles someone else’s. Find whose.

The rules the panel named

What proof carried it

About this page