ADJ13378182 — California WCAB decision

What the panel ordered

Petition for Removal granted; September 3, 2021, Order Compelling Applicant Deposition rescinded; matter returned to WCJ for further proceedings

Petition for Removal of the September 3, 2021, Order Compelling Applicant Deposition

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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 / removalApplicant prevailed

The Board granted removal because the WCJ issued an order with a self-voiding clause without a notice of intention, did not hold a hearing or make a good cause finding, and the order was served by designated service rather than the WCJ, violating due process rights.

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 substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, former § 10843, now § 10955(a); Cortez v. Workers' Comp. Appeals Bd., supra, 136 Cal.App.4th at p. 599, fn. 5; Kleemann v. Workers' Comp. Appeals Bd., supra, 127 Cal.App.4th at p. 280, fn. 2.) Additionally, 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, now § 10955(a) (eff. Jan. 1, 2020).) In light of the considerations discussed below, we conclude that granting removal is appropriate in this matter.

The rules the panel named

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

Cal. Code Regs., tit. 8, former 10843, now 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 granted only if substantial prejudice or irreparable harm will result and reconsideration is inadequate.

The Board applied this standard to determine that removal was appropriate in this case due to procedural deficiencies in the WCJ's order.

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 substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, former § 10843, now § 10955(a); Cortez v. Workers' Comp. Appeals Bd., supra, 136 Cal.App.4th at p. 599, fn. 5; Kleemann v. Workers' Comp. Appeals Bd., supra, 127 Cal.App.4th at p. 280, fn. 2.) Additionally, 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, now § 10955(a) (eff. Jan. 1, 2020).) In light of the considerations discussed below, we conclude that granting removal is appropriate in this matter.

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151; Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284

Due process requires a fair hearing including notice, opportunity to be heard, and a record for review.

The Board emphasized that the WCJ's failure to hold a hearing and make findings violated due process rights.

From the decision · page 3Furthermore, all parties in workers' compensation proceedings retain their 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] (Rucker).) 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. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker, supra, 82 Cal.App.4th at pp. 157-158, citing Kaiser Co. v. Industrial Acc. Com. (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710-712 [57 Cal.Comp.Cases 230].) Consequently, we cannot interpose our own findings without violating the parties' rights to due process. (Gangwish v. Workers' Comp. Appeals Bd., supra, 89 Cal.App.4th at p. 1295 [66 Cal.Comp.Cases 584], citing Rucker, supra, 82 Cal.App.4th at pp. 157-158.)

ADJ13378182 · February 4, 2022

What the panel ordered

What was disputed, and how it came out

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