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California WCABPanel decision

ADJ11861260 · March 5, 2021

The Appeals Board denied the defendant's Petition for Reconsideration of the Findings of Fact & Orders issued by the WCJ on December 16, 2020.

Issues decided: 1
Medical opinions weighed: 0
Authorities named: 1
District office: Van Nuys

What the panel ordered

The Appeals Board denied the defendant's Petition for Reconsideration of the Findings of Fact & Orders issued by the WCJ on December 16, 2020.

Defendant filed a Petition for Removal challenging an interlocutory finding/order regarding its Petition to Strike the qualified medical evaluator (QME). The WCJ's decision included a threshold issue making it a final order subject to reconsideration rather than removal. The Appeals Board applied the removal standard to the review and denied the Petition for Removal.

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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 found that removal is an extraordinary remedy and denied the petition because the defendant did not show significant prejudice or irreparable harm if removal was not granted, and reconsideration would be an adequate remedy.

From the decision · page 1We have considered the allegations of defendant's Petition for Removal and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, we will deny the Petition as one seeking reconsideration.

The facts that decided it

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ADJ11861260 — California WCAB decision · SimilarCase

The WCJ's decision included a threshold issue making it a final order subject to reconsideration rather than removal.

Favours Defendant prevailed

This made the petition subject to reconsideration standards rather than removal standards, limiting the defendant's ability to succeed on the Petition for Removal.

From the decision · page 2WCJ's decision is a final order subject to reconsideration rather than removal. Although the decision contains a finding that is final, the petitioner is only challenging an

The defendant did not show significant prejudice or irreparable harm if removal was not granted.

Favours Defendant prevailed

Without showing significant prejudice or irreparable harm, the extraordinary remedy of removal could not be granted.

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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) Here, for the reasons stated in the WCJ's report, 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.

Reconsideration would be an adequate remedy if a final decision adverse to the petitioner ultimately issues.

Favours Defendant prevailed

This meant removal was not necessary as the petitioner could seek relief through reconsideration later.

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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) Here, for the reasons stated in the WCJ's report, 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.