ADJ10607341 — California WCAB decision

What the panel ordered

Petition for removal denied.

Petition for removal filed and denied by the Appeals Board after review of the WCJ report and record.

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 denied the petition for removal because the petitioner failed to show substantial prejudice or irreparable harm if removal was not granted, and reconsideration was deemed an adequate remedy.

From the decision · page 1Removal 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, § 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 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.

The facts that decided it

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

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

Favours Defendant prevailed

This failure led to denial of the petition for removal.

From the decision · page 1Removal 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, § 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 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.

Defendant preserved issue of incomplete discovery for trial and reconsideration by raising it in pre-trial conference statement.

Favours Defendant prevailed

This made the petition for removal premature and inappropriate.

From the decision · page 2Additionally, defendant has raised the issue of incomplete discovery on the pre-trial conference statement (PTCS) filed on October 15, 2024. Thus, they have already preserved their issue for determination by the trial judge, as issues relating to due process are a valid basis for reconsideration after a final decision issues. Thus, their filing of a petition for removal, when the issue of discovery is clearly preserved for trial, is both inappropriate and premature.

The rules the panel named

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

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

Petition for removal granted only if petitioner shows substantial prejudice or irreparable harm and reconsideration is inadequate remedy.

Applied to deny petition for removal.

From the decision · page 1Removal 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, § 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 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.

Cal. Code Regs., tit. 8, 10515

Demurrers, petitions for judgment on the pleadings and petitions for summary judgment are not permitted in workers' compensation matters.

Applied to reject petition amounting to judgment on pleadings.

From the decision · page 2However, in workers' compensation matters, "[d]emurrers, petitions for judgment on the pleadings and petitions for summary judgment are not permitted." (Cal. Code Regs., tit. 8, § 10515.) Rather, decisions in workers' compensation cases must be based upon an adequate record after providing all parties an opportunity to be heard, to protect the due process rights of everyone involved. (Lab. Code § 5313; Hamilton, supra, at p. 476; Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].)

Lab. Code 5313

Decisions must be based on an adequate record after all parties have opportunity to be heard to protect due process rights.

Applied to emphasize due process protection in decision making.

From the decision · page 2However, in workers' compensation matters, "[d]emurrers, petitions for judgment on the pleadings and petitions for summary judgment are not permitted." (Cal. Code Regs., tit. 8, § 10515.) Rather, decisions in workers' compensation cases must be based upon an adequate record after providing all parties an opportunity to be heard, to protect the due process rights of everyone involved. (Lab. Code § 5313; Hamilton, supra, at p. 476; Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].)

Lab. Code 5813

Improper attachment of documents to petition for removal may subject party to sanctions.

Admonished defendant's attorneys regarding attachments to petition for removal.

From the decision · page 2With respect to the attachments, defendant's attorneys are admonished that it is not necessary to attach documents to a petition for removal. With respect to documents that are not part of the adjudication file, contentions may be supported by an offer of proof. (Cal. Code Regs., tit. 8, § 10945(c); see Cal. Code Regs., tit. 8, § 10803 [record of proceedings].) Documents that are part of the adjudication file may not be attached (id.) and doing so may subject the offending party to sanctions. (Lab. Code, § 5813; Cal. Code Regs., tit. 8, § 10421.)

ADJ10607341 · April 3, 2025

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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