Cal. Code Regs., tit. 8, 10955(a)
Removal standard for interlocutory orders
The Appeals Board applied this standard to determine whether to grant removal of the interlocutory order for additional panel QMEs.
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
significant 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 defendant'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, 5902
Verification requirement for petitions for reconsideration
The petition was dismissed for lack of verification as required by this statute.
From the decision · page 3We note that, had we not denied the petition, we would have dismissed it for lack
for verification. Labor Code section 59021 requires that a petition for reconsideration be verified.
(Lab. Code, § 5902; see also Cal. Code Regs., tit. 8, § 10510(d).) In Lucena v. Diablo Auto
Body (2000) 65 Cal.Comp.Cases 1425 (Significant Panel Decision), it was held that where a
petition for reconsideration is not verified as required by section 5902, the petition may be
dismissed if the petitioner has been given notice of the defect (either by the WCJ's report or by the
respondent's answer) unless, within a reasonable time, the petitioner either: (1) cures the defect by
filing a verification; or (2) files an explanation that establishes a compelling reason for the lack of
verification and the record establishes that the respondents are not prejudiced by the lack of
verification. Here, the petition is not verified and notice of this defect was specifically given in
the WCJ's report. (WCJ Report, p. 1.) Moreover, a reasonable period of time has elapsed, but
defendant has neither cured the defect by filing a verification nor offered an explanation of why a
verification cannot be filed. Consequently, had we not denied the petition on the merits, we would
have dismissed defendant's petition for lack of verification.