Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 10955(a)
Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is inadequate.
Applied to determine whether removal was warranted due to due process concerns in discovery order.
From the decision · page 3Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez
v. Workers' Comp. Appeals Bd. (Cortez) (2006) 136 Cal.App.4th 596, 599, fn. 5 [71
Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (Kleemann) (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).)
Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151
Parties have a fundamental right to due process and a fair hearing including opportunity to call and cross-examine witnesses and present evidence.
Applied to assess due process rights in the discovery dispute.
From the decision · page 3Parties to a workers' compensation proceeding retain the fundamental right to due process
and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers'
Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) A fair
hearing is "one of `the rudiments of fair play' assured to every litigant...." (Id. at p. 158.) As stated
by the Supreme Court of California in Carstens v. Pillsbury (1916) 172 Cal. 572, "the
commission...must find facts and declare and enforce rights and liabilities, - in short, it acts as a
court, and it must observe the mandate of the constitution of the United States that this cannot be
done except after due process of law." (Id. at p. 577.) A fair hearing includes, but is not limited
to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer
evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284,
1295 [66 Cal.Comp.Cases 584].)
Lab. Code, 5903, 5952(d); Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473
Decisions must be supported by substantial evidence and an adequate record must be made to understand the basis of the WCJ's decision.
Applied to find the WCJ's order lacked substantial evidence and an adequate record.
From the decision · page 4Decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code,
§ 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39
Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35
Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35
Cal.Comp.Cases 16].) An adequate and complete record is necessary to understand the basis for