ADJ10010283 — California WCAB decision

What the panel ordered

Petition for Removal denied by Appeals Board panel

Petition for Removal filed by defendant and considered by WCJ and Appeals Board panel

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 Appeals Board found the Petition for Removal timely based on evidence of filing but denied removal because the petitioner did not show substantial prejudice or irreparable harm and reconsideration was deemed an adequate remedy.

From the decision · page 1Contrary to the WCJ, we find defendant's petition timely. The WCJ issued separate Minute Orders taking these matters off calendar on April 8, 2021. The Electronic Adjudication Management System (EAMS) reflects that a Petition for Removal was filed on May 3, 2021. However, the document identified as EAMS Doc ID No. 36541154 contains only defense counsel's May 3, 2021 cover letter and not a Petition for Removal. On May 7, 2021, applicant filed an Answer addressing the substantive issues raised by defendant's petition. On May 18, 2021, the WCJ issue a Report and Recommendation on Petition for Removal asserting that no Petition for Removal had been filed. On June 2, 2021, defendant filed a Petition for Removal dated May 3, 2021, along with a May 3, 2021 proof of service, and a copy of the EAMS submission eform noting Batch ID No. 34685808 and indicating a filing date of May 3, 2021. Based on the evidence submitted by defendant, we will treat the Petition for Removal as timely.

The facts that decided it

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

Defendant's Petition for Removal was filed on May 3, 2021, with supporting evidence of timely filing.

Favours Defendant prevailed

This established the timeliness of the petition, which the WCJ initially disputed but the Appeals Board accepted.

From the decision · page 1Contrary to the WCJ, we find defendant's petition timely. The WCJ issued separate Minute Orders taking these matters off calendar on April 8, 2021. The Electronic Adjudication Management System (EAMS) reflects that a Petition for Removal was filed on May 3, 2021. However, the document identified as EAMS Doc ID No. 36541154 contains only defense counsel's May 3, 2021 cover letter and not a Petition for Removal. On May 7, 2021, applicant filed an Answer addressing the substantive issues raised by defendant's petition. On May 18, 2021, the WCJ issue a Report and Recommendation on Petition for Removal asserting that no Petition for Removal had been filed. On June 2, 2021, defendant filed a Petition for Removal dated May 3, 2021, along with a May 3, 2021 proof of service, and a copy of the EAMS submission eform noting Batch ID No. 34685808 and indicating a filing date of May 3, 2021. Based on the evidence submitted by defendant, we will treat the Petition for Removal as timely.

Petitioner did not demonstrate substantial prejudice or irreparable harm if removal was denied.

Favours Defendant prevailed

Without showing substantial prejudice or irreparable harm, the extraordinary remedy of removal was not justified.

From the decision · page 2Cal.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 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.

Reconsideration was deemed an adequate remedy if a final adverse decision ultimately issues.

Favours Defendant prevailed

This negated the need for removal as an extraordinary remedy, supporting denial of the petition.

From the decision · page 2Cal.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 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.

ADJ10010283 · July 12, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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