What the panel ordered
Petition for reconsideration dismissed as non-final; petition for removal granted; order compelling QME attendance rescinded and matter returned to trial level.
Applicant sought reconsideration or, in the alternative, removal of an order compelling attendance at a QME evaluation issued by the WCJ on February 27, 2024.
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 order compelling applicant's attendance at a QME evaluation was an interim discovery order, not a final order, and was issued without notice to applicant, violating due process. Removal was warranted to rescind the order and return the matter for proper notice and proceedings.
From the decision · page 7Here, the WCJ issued an order for applicant to appear before a disputed QME. The order issued without notice to applicant, which violated applicant's right to due process and warrants removal. Upon return, the WCJ should provide adequate notice of intent to applicant prior to issuing any findings or orders, notwithstanding applicant's failure to appear at trial. If applicant objects to the notice of intent, the WCJ must create a record and then decide the issue on the merits. This would include, for example, obtaining evidence of the claim denial letter, when it issued, and defendant's panel request. The WCJ may include a notice to admit exhibits and a notice of intent to submit the matter on the record as part of a notice of intent. (Cal. Code Regs., tit. 8, § 10832.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The order compelling applicant's attendance at a QME evaluation was issued without notice to applicant.
Favours Applicant prevailed
Issuing the order without notice violated applicant's due process rights, warranting rescission of the order and return to trial level.
From the decision · page 7Here, the WCJ issued an order for applicant to appear before a disputed QME. The order issued without notice to applicant, which violated applicant's right to due process and warrants removal. Upon return, the WCJ should provide adequate notice of intent to applicant prior to issuing any findings or orders, notwithstanding applicant's failure to appear at trial. If applicant objects to the notice of intent, the WCJ must create a record and then decide the issue on the merits. This would include, for example, obtaining evidence of the claim denial letter, when it issued, and defendant's panel request. The WCJ may include a notice to admit exhibits and a notice of intent to submit the matter on the record as part of a notice of intent. (Cal. Code Regs., tit. 8, § 10832.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code §§ 5900(a), 5902, 5903; Cal. Code Regs., tit. 8, § 10955(a); Cal. Code Regs., tit. 8, § 10756; Cal. Code Regs., tit. 8, § 10832; Rucker v. WCAB (2000) 82 Cal.App.4th 151; Carstens v. Pillsbury (1916) 172 Cal. 572
A petition for reconsideration may only be taken from a final order, decision, or award; removal is granted only if significant prejudice or irreparable harm will result and reconsideration is not an adequate remedy; due process and fair hearing are fundamental rights.
The WCAB found the order was not final for reconsideration, but removal was warranted due to lack of notice and due process violation.
From the decision · page 7Here, the WCJ issued an order for applicant to appear before a disputed QME. The order issued without notice to applicant, which violated applicant's right to due process and warrants removal. Upon return, the WCJ should provide adequate notice of intent to applicant prior to issuing any findings or orders, notwithstanding applicant's failure to appear at trial. If applicant objects to the notice of intent, the WCJ must create a record and then decide the issue on the merits. This would include, for example, obtaining evidence of the claim denial letter, when it issued, and defendant's panel request. The WCJ may include a notice to admit exhibits and a notice of intent to submit the matter on the record as part of a notice of intent. (Cal. Code Regs., tit. 8, § 10832.)
What proof carried it
The evidence the panel weighed, by kind.
The WCJ issued the order compelling QME attendance without providing notice to applicant, violating due process rights.
From the decision · page 7Here, the WCJ issued an order for applicant to appear before a disputed QME. The order issued without notice to applicant, which violated applicant's right to due process and warrants removal. Upon return, the WCJ should provide adequate notice of intent to applicant prior to issuing any findings or orders, notwithstanding applicant's failure to appear at trial. If applicant objects to the notice of intent, the WCJ must create a record and then decide the issue on the merits. This would include, for example, obtaining evidence of the claim denial letter, when it issued, and defendant's panel request. The WCJ may include a notice to admit exhibits and a notice of intent to submit the matter on the record as part of a notice of intent. (Cal. Code Regs., tit. 8, § 10832.)
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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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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