ADJ10450766 · December 31, 2024

The WCJ found re-evaluations not warranted; the defendant failed to show significant prejudice or irreparable harm to justify removal; reconsideration was adequate remedy; thus petition dismissed and removal denied.

From the decision · page 3On October 4, 2024, the WCJ issued the Findings of Fact, in which the WCJ found, in relevant part, that applicant was employed by defendant, that the injuries to her lumbar spine and coccyx were AOE/COE, and that "[r]e-evaluations with the PQME in psychiatry, Dr. Howard Greils and the PQME in urology, Dr. Ernest Agatstein, are not warranted." (10/4/24 Findings of Fact, at pp. 1-2.)

WCJ found PQME re-evaluations in psychiatry and urology not warranted.

Favours Defendant prevailed

This finding was the basis for denying the petition for reconsideration and removal.

From the decision · page 3On October 4, 2024, the WCJ issued the Findings of Fact, in which the WCJ found, in relevant part, that applicant was employed by defendant, that the injuries to her lumbar spine and coccyx were AOE/COE, and that "[r]e-evaluations with the PQME in psychiatry, Dr. Howard Greils and the PQME in urology, Dr. Ernest Agatstein, are not warranted." (10/4/24 Findings of Fact, at pp. 1-2.)

Defendant failed to show significant prejudice or irreparable harm if removal denied.

Favours Defendant prevailed

Lack of such showing meant removal was denied and reconsideration was adequate remedy.

From the decision · page 5Removal 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, defendant made neither required showing. Thus, 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.

Final report admitted into evidence; no indication re-evaluation warranted.

From the decision · page 22). Applicant filed a Declaration of Readiness to Proceed (DOR), on May 23, 2024, alleging that an expedited hearing was needed because "defendants have set the evaluation with urology QME Dr. Agatstein, however applicant has objected given that applicant is already MMI by this QME." (5/23/24 DOR.) The issue for the June 24, 2024, trial was "whether reevaluations with urology PQME Dr. Ernest Agatstein and psych QME Dr. Howard M. Greils are warranted, given the stipulation made at the October 9, 2023 trial, MOH/SOE, p. 2, lines 5-6." (6/24/24 First Amended PTCS; 6/24/24 MOH.) Applicant's exhibits 8 through 17, which consisted of two reports from Dr. Greils, five reports from Dr. Agatstein, transcripts of Dr. Agatstein's deposition, and the final report from the Primary Treating Physician, Dr. Richard Dorsey, were admitted into evidence. (6/24/24 MOH at pp. 2-3.) The WCJ ordered the parties to file trial briefs and indicated that the matter would be

Found applicant reached maximum medical improvement; re-evaluation not warranted.

Stipulation and trial evidence showed MMI and no need for re-evaluation.

From the decision · page 2BACKGROUND Applicant filed Applications for Adjudication (Applications) on February 6, June 27, and July 5, 2016, in which she alleged that while assisting a patient on July 30, 2015, in the course of her work for defendant, she injured multiple body parts. (2/6/16 Application; 6/27/16 Amended Application; 7/5/16 Amended Application.) PQME evaluations of applicant were conducted by a number of doctors, including a psychiatric evaluation by Dr. Howard M. Greils and urology evaluations by Dr. Ernest H. Agatstein. (Applicant's Exbs. 8-14.) The matter went to trial on September 18 and October 9, 2023, on the issue of whether a replacement panel in internal medicine was warranted. (9/18/23 MOH; 10/9/23 MOH.) The parties stipulated that applicant was employed by defendant; that the injuries to her coccyx and lumbar spine were arising out of and in the course of her employment (AOE/COE); that all other body parts were deferred; and that the PQMEs in "psychiatry, neurology, orthopedics, and [urology]" all found that she had reached maximum medical improvement. (Ibid.) On December 1, 2023, the WCJ issued Findings of Fact and Order, finding that applicant sustained injury AOE/COE to her coccyx and lumbar spine; and that a replacement PQME in the field of internal medicine was not warranted. (12/1/23 F&O, at p.

Found applicant reached maximum medical improvement; re-evaluation not warranted.

Stipulation and trial evidence showed MMI and no need for re-evaluation.

From the decision · page 2BACKGROUND Applicant filed Applications for Adjudication (Applications) on February 6, June 27, and July 5, 2016, in which she alleged that while assisting a patient on July 30, 2015, in the course of her work for defendant, she injured multiple body parts. (2/6/16 Application; 6/27/16 Amended Application; 7/5/16 Amended Application.) PQME evaluations of applicant were conducted by a number of doctors, including a psychiatric evaluation by Dr. Howard M. Greils and urology evaluations by Dr. Ernest H. Agatstein. (Applicant's Exbs. 8-14.) The matter went to trial on September 18 and October 9, 2023, on the issue of whether a replacement panel in internal medicine was warranted. (9/18/23 MOH; 10/9/23 MOH.) The parties stipulated that applicant was employed by defendant; that the injuries to her coccyx and lumbar spine were arising out of and in the course of her employment (AOE/COE); that all other body parts were deferred; and that the PQMEs in "psychiatry, neurology, orthopedics, and [urology]" all found that she had reached maximum medical improvement. (Ibid.) On December 1, 2023, the WCJ issued Findings of Fact and Order, finding that applicant sustained injury AOE/COE to her coccyx and lumbar spine; and that a replacement PQME in the field of internal medicine was not warranted. (12/1/23 F&O, at p.

Labor Code section 5909

Petition for reconsideration must be acted upon within 60 days of transmission to Appeals Board (Lab. Code, 5909).

The Board acted timely on the petition filed by defendant.

From the decision · page 3Former Labor Code section 59092 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:

Cal. Code Regs., tit. 8, 10955(a)

Removal is an extraordinary remedy granted only if petitioner shows significant prejudice or irreparable harm and that reconsideration is inadequate (Cal. Code Regs., tit. 8, 10955(a)).

Defendant failed to meet burden for removal; petition denied.

From the decision · page 5Removal 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, defendant made neither required showing. Thus, 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.

Stipulation that applicant was employed by defendant and injuries to coccyx and lumbar spine were AOE/COE; all other body parts deferred.

From the decision · page 2BACKGROUND Applicant filed Applications for Adjudication (Applications) on February 6, June 27, and July 5, 2016, in which she alleged that while assisting a patient on July 30, 2015, in the course of her work for defendant, she injured multiple body parts. (2/6/16 Application; 6/27/16 Amended Application; 7/5/16 Amended Application.) PQME evaluations of applicant were conducted by a number of doctors, including a psychiatric evaluation by Dr. Howard M. Greils and urology evaluations by Dr. Ernest H. Agatstein. (Applicant's Exbs. 8-14.) The matter went to trial on September 18 and October 9, 2023, on the issue of whether a replacement panel in internal medicine was warranted. (9/18/23 MOH; 10/9/23 MOH.) The parties stipulated that applicant was employed by defendant; that the injuries to her coccyx and lumbar spine were arising out of and in the course of her employment (AOE/COE); that all other body parts were deferred; and that the PQMEs in "psychiatry, neurology, orthopedics, and [urology]" all found that she had reached maximum medical improvement. (Ibid.) On December 1, 2023, the WCJ issued Findings of Fact and Order, finding that applicant sustained injury AOE/COE to her coccyx and lumbar spine; and that a replacement PQME in the field of internal medicine was not warranted. (12/1/23 F&O, at p.

Defendant failed to show significant prejudice or irreparable harm to justify removal.

From the decision · page 5Removal 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, defendant made neither required showing. Thus, 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.