What the panel ordered
The Petition for Removal is denied, allowing the matter to proceed to trial with the possibility of further discovery if the WCJ orders it.
Defendant filed a timely Petition for Removal of two pre-trial orders issued by the WCJ on December 30, 2021, which denied defendant's request for continued discovery and ordered the matter set for trial.
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.
The Appeals Board found no substantial prejudice or irreparable harm from denying further discovery and concluded reconsideration would be an adequate remedy if the matter proceeds to final decision.
From the decision · page 1Defendant, Cypress Insurance Company, filed a timely Petition for Removal of two pre- trial orders issued by the workers' compensation administrative law judge (WCJ) on December 30, 2021, whereby the WCJ denied defendant's request for continued discovery and ordered the matter set for trial. Defendant contends that it was denied due process by the WCJ's decision to close discovery and move forward with trial.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ closed discovery and ordered the matter set for trial, denying defendant's request for continued discovery.
Favours Defendant prevailed
This closure was challenged as denying due process, but the Board found no substantial prejudice or irreparable harm from this action.
From the decision · page 1Defendant, Cypress Insurance Company, filed a timely Petition for Removal of two pre- trial orders issued by the workers' compensation administrative law judge (WCJ) on December 30, 2021, whereby the WCJ denied defendant's request for continued discovery and ordered the matter set for trial. Defendant contends that it was denied due process by the WCJ's decision to close discovery and move forward with trial.
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); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274
Removal is an extraordinary remedy rarely exercised by the Appeals Board, granted only if substantial prejudice or irreparable harm will result if removal is not granted, and reconsideration is not an adequate remedy.
The Board applied this standard to deny the Petition for Removal, finding no substantial prejudice or irreparable harm and that reconsideration would be adequate.
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
What proof carried it
The evidence the panel weighed, by kind.
Defendant argued it was denied opportunity to depose or re-depose QMEs regarding alleged contradictory statements by applicant, seeking supplemental reporting and deposition testimony.
From the decision · page 2Here, defendant argues that, by closing discovery and ordering the matter set for trial, the WCJ denied defendant of the opportunity to depose, or re-depose, the Neurology, Psychology, and Orthopedic QMEs regarding alleged contradictory statements made by applicant to the QMEs regarding her injuries. Defendant argues that once it discovered these alleged inconsistencies, it should have been allowed to request supplemental reporting and deposition testimony from the QMEs in order to corroborate, or rebut, applicant's allegations of injury. Based upon the WCJ's analysis of the merits of defendant'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 defendant. We note that, during trial, defendant will have the opportunity to present its arguments about further developing the record, and, if the WCJ sees fit after making a proper record, he or she may order additional discovery.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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