ADJ17262639 · September 29, 2025

The Appeals Board found that the defendant did not show substantial prejudice or irreparable harm from the continuance order and that reconsideration would be an adequate remedy if the matter proceeds to a final decision adverse to the defendant.

From the decision · page 1Defendant has filed a Petition for Removal from the order of continuance issued on February 20, 2025, by the workers' compensation administrative law judge (WCJ).

The defendant did not demonstrate substantial prejudice or irreparable harm from the WCJ's order of continuance.

Favours Defendant prevailed

This fact led the Appeals Board to deny the Petition for Removal as removal requires showing substantial prejudice or irreparable harm.

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

The Labor Code and WCAB rules grant discretion to the WCJ and Appeals Board to set trial dates and grant continuances.

Favours Defendant prevailed

This discretion undercut the defendant's argument that the WCJ violated Labor Code section 5502(d)(3) and WCAB Rule 10744 by issuing the continuance order.

From the decision · page 2Here, defendant argues that the WCJ violated Labor Code section 5502(d)(3), which states: If the claim is not resolved at the mandatory settlement conference, the parties shall file a pretrial conference statement noting the specific issues in dispute, each party's proposed permanent disability rating, and listing the exhibits, and disclosing witnesses. Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference. What defendant fails to recognize is that the above Labor Code provision only applies where a WCJ determines that a matter is ready to proceed to trial.

Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5

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 if removal is not granted.

The Appeals Board applied this standard and found the defendant did not meet the burden to show substantial prejudice or irreparable harm.

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

Labor Code section 5502(d)(3)

Labor Code section 5502(d)(3) limits evidence admissibility after the mandatory settlement conference unless due diligence shows evidence was not available earlier.

The defendant argued the WCJ's order violated this section, but the Appeals Board found it only applies when the WCJ determines the matter is ready for trial, which was not the case here.

From the decision · page 2Here, defendant argues that the WCJ violated Labor Code section 5502(d)(3), which states: If the claim is not resolved at the mandatory settlement conference, the parties shall file a pretrial conference statement noting the specific issues in dispute, each party's proposed permanent disability rating, and listing the exhibits, and disclosing witnesses. Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference. What defendant fails to recognize is that the above Labor Code provision only applies where a WCJ determines that a matter is ready to proceed to trial.

Labor Code section 5700

Labor Code section 5700 grants the WCJ and Appeals Board discretion to adjourn hearings and set trial dates.

The Appeals Board noted this discretion overruled the defendant's argument that a declaration of readiness mandates trial setting.

From the decision · page 2Nowhere within the Labor Code can we find authority that a party has the unilateral right to proceed to trial upon the filing of a declaration of readiness (DOR). To the contrary, the Labor Code is quite clear that the WCJ and the Appeals Board have discretion when setting a matter for trial: "The hearing on the application may be adjourned from time to time and from place to place in the discretion of the appeals board or the workers' compensation judge holding the hearing." (Lab. Code, § 5700.) Next, defendant argues that WCAB Rule 10744 requires a WCJ to set a matter for trial when a party fails to object to a DOR.

Cal. Code Regs., tit. 8, 10744(d)

WCAB Rule 10744(d) deems a party waives objections to proceeding on issues specified in a declaration of readiness if no objection is filed, absent extraordinary circumstances.

The Appeals Board interpreted this rule as waiving objections to trial setting, but not removing the WCJ's discretion to grant continuances.

From the decision · page 2(Cal. Code Regs., tit. 8, § 10744(d).) The rule states: "If a party has received a copy of the Declaration of Readiness to Proceed and has not filed an objection under this rule, that party shall be deemed to have waived any and all objections to proceeding on the issues specified in the declaration, absent extraordinary circumstances." (Ibid.) WCAB Rule 10744 can only be construed as the parties waiving objection to the WCJ setting the matter for trial. Per Labor Code section 5700, both the WCJ and the Appeals Board retain the discretion to determine whether a matter should be set for trial or whether a continuance is warranted. We would further note that petitions for removal may only be filed where there is a good faith and/or non-frivolous basis to allege irreparable harm or substantial prejudice. Furthermore, misstating the court's rulings or otherwise misleading the court in a petition is both grounds for denying the petition and may constitute bad faith and/or frivolous conduct. (Lab. Code, § 5813; Cal. Code Regs., tit. 8, § 10945.) Accordingly, we deny removal.

Labor Code section 5813; Cal. Code Regs., tit. 8, 10945

Misstating court rulings or misleading the court in a petition can be grounds for denial and may constitute bad faith or frivolous conduct.

The Appeals Board warned that petitions for removal must be made in good faith and non-frivolous basis, and misleading the court can lead to denial and sanctions.

From the decision · page 2(Cal. Code Regs., tit. 8, § 10744(d).) The rule states: "If a party has received a copy of the Declaration of Readiness to Proceed and has not filed an objection under this rule, that party shall be deemed to have waived any and all objections to proceeding on the issues specified in the declaration, absent extraordinary circumstances." (Ibid.) WCAB Rule 10744 can only be construed as the parties waiving objection to the WCJ setting the matter for trial. Per Labor Code section 5700, both the WCJ and the Appeals Board retain the discretion to determine whether a matter should be set for trial or whether a continuance is warranted. We would further note that petitions for removal may only be filed where there is a good faith and/or non-frivolous basis to allege irreparable harm or substantial prejudice. Furthermore, misstating the court's rulings or otherwise misleading the court in a petition is both grounds for denying the petition and may constitute bad faith and/or frivolous conduct. (Lab. Code, § 5813; Cal. Code Regs., tit. 8, § 10945.) Accordingly, we deny removal.