ADJ8301447 — California WCAB decision

What the panel ordered

Petitions for Disqualification are dismissed by the Appeals Board.

Petitions for Disqualification filed by applicant and supplemental petition accepted but dismissed by the Appeals Board.

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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

The Petitions for Disqualification failed to allege sufficient grounds under the relevant statutes and rules, and the WCJ's conduct did not demonstrate bias or prejudice warranting disqualification.

From the decision · page 1Applicant, in pro per, has filed a Petition for Disqualification on April 5, 2021 and a supplemental Petition for Disqualification on April 13, 2021. Pursuant to our authority, we accept applicant's supplemental petition. (Cal. Code Regs., tit. 8, former § 10848, now § 10964 (eff. Jan. 1, 2020).) However, we caution applicant that "[a] party seeking to file a supplemental pleading shall file a petition setting forth good cause for the Appeals Board to approve the filing of a supplemental pleading and shall attach the proposed pleading." (Cal. Code Regs., tit. 8, former § 10848, now § 10964 (eff. Jan. 1, 2020).) We expect applicant to comply with this requirement in the future.

The facts that decided it

The rules the panel named

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

Labor Code section 5311

Labor Code section 5311 provides grounds for disqualification of a WCJ.

Applied to evaluate the sufficiency of grounds for disqualification.

From the decision · page 1Labor 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 WCJ has demonstrated "[t]he existence of a state of mind... evincing enmity against or bias toward either party" (Code Civ. Proc., § 641(g)).

Code of Civil Procedure section 641(f), (g)

Code of Civil Procedure section 641(f) and (g) specify grounds for disqualification including bias or prejudgment.

Applied to assess alleged bias or prejudgment by the WCJ.

From the decision · page 1Labor 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 WCJ has demonstrated "[t]he existence of a state of mind... evincing enmity against or bias toward either party" (Code Civ. Proc., § 641(g)).

WCAB Rule 10960

WCAB Rule 10960 requires a petition for disqualification to be supported by detailed facts under penalty of perjury.

Applied to determine adequacy of petition allegations.

From the decision · page 2Under WCAB Rule 10960, proceedings to disqualify a WCJ "shall be initiated by the filing of a petition for disqualification supported by an affidavit or declaration under penalty of perjury stating in detail facts establishing one or more of the grounds for disqualification...." (Cal. Code Regs., tit. 8, former § 10452, now § 10960 (eff. Jan. 1, 2020), italics added.) It has long been recognized that "[t]he allegations in a statement charging bias and prejudice of a judge must set forth specifically the facts on which the charge is predicated," that "[a] statement containing nothing but conclusions and setting forth no facts constituting a ground for disqualification may be ignored," and that "[w]here no facts are set forth in the statement there is no issue of fact to be determined." (Mackie v. Dyer (1957) 154 Cal.App.2d 395, 399, italics added.)

ADJ8301447 · July 1, 2021

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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