ADJ13924691 · December 6, 2024

The Appeals Board denied the petition because the petitioner failed to show substantial prejudice or irreparable harm and reconsideration was deemed an adequate remedy.

From the decision · page 1We have considered the allegations of the 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 based upon the WCJ's analysis of the merits of petitioner's arguments in the WCJ's report, we will deny removal.

Defendant failed to identify the employer's workers' compensation insurance carrier on the official address record.

Favours Applicant prevailed

This failure is subject to sanctions and affects the enforceability of any award to the applicant.

From the decision · page 3In the instant case, the only mention of a workers' compensation insurance company is the handwritten notation on the pre-trial conference statement. Thus, defendant has failed to comply with its mandatory duty under Coldiron and WCAB Rule 10396 to clearly identify the employer's workers' compensation insurance carrier, and this conduct is subject to sanctions. Moreover, from the applicant's perspective, if the correct defendant is not identified, any award to applicant may potentially be unenforceable. (See Lab. Code, § 5806, 5807.) Upon return of this matter, the parties should make all efforts to correct the official address record forthwith.

Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274; Cal. Code Regs., tit. 8, 10955(a)

Removal is an extraordinary remedy rarely exercised by the Appeals Board and will be granted only if the petitioner shows substantial prejudice or irreparable harm and that reconsideration will not be an adequate remedy if a final adverse decision issues.

The Appeals Board applied this standard and found the petitioner did not meet the burden to justify 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.

Coldiron v. Compuware Corp. (2002) 67 Cal.Comp.Cases 289; WCAB Rule 10390

A third-party administrator must disclose the identity of its client, including the insurance carrier, to the WCAB and parties, or face sanctions under Labor Code section 5813.

The Appeals Board found defendant failed to comply with this duty, which could lead to sanctions and affect enforceability of any award.

From the decision · page 2... where an employer's liability for workers' compensation benefits is adjusted by a third-party administrator, the administrator must disclose to the Workers' Compensation Appeals Board, to the other parties in any proceeding in which it is a party, and to its own counsel the identity of its client, whether a self-insured employer or insurance carrier. If the client is an insurance carrier, the administrator must disclose whether the policy includes a "high self-insured retention," a large deductible, or any other provision that affects the identity of the entity actually liable for the payment of compensation. Failure of the administrator to disclose the identity of its client may subject it to sanctions pursuant to Labor Code section 5813.

Failure to identify the employer's workers' compensation insurance carrier on the official address record

From the decision · page 3In the instant case, the only mention of a workers' compensation insurance company is the handwritten notation on the pre-trial conference statement. Thus, defendant has failed to comply with its mandatory duty under Coldiron and WCAB Rule 10396 to clearly identify the employer's workers' compensation insurance carrier, and this conduct is subject to sanctions. Moreover, from the applicant's perspective, if the correct defendant is not identified, any award to applicant may potentially be unenforceable. (See Lab. Code, § 5806, 5807.) Upon return of this matter, the parties should make all efforts to correct the official address record forthwith.