ADJ2631276 — California WCAB decision

What the panel ordered

Petition for reconsideration dismissed; petitions for removal and disqualification denied

Petitions for reconsideration, removal, and disqualification filed by petitioner after an intermediate procedural order by WCJ

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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.

Reconsideration / removalDefendant prevailed

Petitions concerned an intermediate procedural order not final; removal denied due to lack of prejudice; disqualification denied for lack of factual basis.

From the decision · page 1On August 20, 2021, the Law Office of Vernon Goldwater filed two pleadings: a pleading entitled Petition to Allow Supplemental Petition for Reconsideration and a pleading entitled Successor Lien Claimant's Supplemental Petition for Reconsideration. Both address the Order Rescinding 2nd Amended Joint Findings and Order issued by the workers' compensation administrative law judge (WCJ) on July 27, 2021. We have considered the allegations of petitioner's pleadings and the contents of the WCJ's report with respect thereto. Based on our review of the record, and based upon the WCJ's analysis of the merits of the petitioner's arguments in the WCJ's report, we will dismiss the petitions to the extent they seek reconsideration, deny them to the extent they seek removal, and deny them to the extent they seek disqualification of the WCJ.

The facts that decided it

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

Petition for disqualification did not set forth sufficient factual allegations under penalty of perjury.

Favours Defendant prevailed

Lack of factual basis for disqualification led to denial of that petition.

From the decision · page 3Here, the petition for disqualification does not set forth facts, declared under penalty of perjury, that are sufficient to establish disqualification pursuant to Labor Code section 5311, WCAB Rule 10960, and Code of Civil Procedure section 641(f) and/or (g). Accordingly, the request for disqualification will be denied.

The July 27, 2021 Order Rescinding 2nd Amended Joint Findings and Order is an intermediate procedural order, not a final decision.

Favours Defendant prevailed

Petitions for reconsideration require a final order; this order did not determine substantive rights or threshold issues.

From the decision · page 2Here, the WCJ's July 27, 2021 Order Rescinding 2nd Amended Joint Findings and Order is solely an intermediate procedural order. It does not determine any substantive right or liability and does not determine a threshold issue. Accordingly, it is not a "final" decision. Therefore, the petitions will be dismissed to the extent they seek reconsideration.

Petitioner failed to show substantial prejudice or irreparable harm if removal was denied.

Favours Defendant prevailed

Removal is granted only upon showing such harm; lack of demonstration led to denial of removal petition.

From the decision · page 2We will also deny the petitions to the extent they seeks removal. Removal 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) Here, based upon the WCJ's analysis of the merits of the petitioner's arguments, 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.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, §§ 5900(a), 5902, 5903

A petition for reconsideration may properly be taken only from a 'final' order, decision, or award.

Applied to dismiss petition for reconsideration as the order was intermediate procedural and not final.

From the decision · page 1A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661])

Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a)

Removal is an extraordinary remedy rarely exercised by the Appeals Board and requires showing substantial prejudice or irreparable harm if removal is not granted.

Applied to deny petition for removal due to lack of demonstrated prejudice or irreparable harm.

From the decision · page 2We will also deny the petitions to the extent they seeks removal. Removal 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) Here, based upon the WCJ's analysis of the merits of the petitioner's arguments, 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.

Lab. Code, § 5311; Code Civ. Proc., § 641; Cal. Code Regs., tit. 8, former § 10452, now § 10960

Disqualification of a WCJ requires specific factual allegations under penalty of perjury establishing grounds under Code of Civil Procedure section 641.

Applied to deny petition for disqualification for failure to set forth sufficient factual allegations.

From the decision · page 2Finally, we address the request for disqualification. Labor Code section 5311 provides that a party may seek to disqualify a WCJ upon any one or more of the grounds specified in Code of Civil Procedure section 641. (Lab. Code, § 5311; see also Code Civ. Proc., § 641.) Among the grounds for disqualification under section 641 are that the WCJ has "formed or expressed an unqualified opinion or belief as to the merits of the action" (Code Civ. Proc., § 641(f)) or that the

ADJ2631276 · October 19, 2021

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