Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, § 10955(a); Cortez v. WCAB; Kleemann v. WCAB
Removal is granted only if the petitioner shows substantial prejudice or irreparable harm and reconsideration is not an adequate remedy.
The Board found that the lack of due process and an adequate record constituted substantial prejudice justifying removal.
From the decision · page 3Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v.
Workers' Comp. Appeals Bd. (Cortez) (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases
155]; Kleemann v. Workers' Comp. Appeals Bd. (Kleemann) (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).)
Rucker v. WCAB; Carstens v. Pillsbury; Gangwish v. WCAB
Parties are entitled to due process and a fair hearing, including the opportunity to present evidence and objections before an order is issued.
The Board found the WCJ's failure to issue a Notice of Intention and allow objections violated due process.
From the decision · page 3Parties to a workers' compensation proceeding retain the 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].) A fair
hearing is "one of `the rudiments of fair play' assured to every litigant...." (Id. at p. 158.) As stated
by the Supreme Court of California in Carstens v. Pillsbury (1916) 172 Cal. 572, "the
commission...must find facts and declare and enforce rights and liabilities, - in short, it acts as a
court, and it must observe the mandate of the constitution of the United States that this cannot be
done except after due process of law." (Id. at p. 577.) 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. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284,
1295 [66 Cal.Comp.Cases 584].)
Cal. Code Regs., tit. 8, § 10628
A final order on a disputed issue must be served by the WCAB, not by a party or their attorney.
The Board found the WCJ improperly delegated service of the final order to applicant's counsel.
From the decision · page 4(a) The Workers' Compensation Appeals Board shall serve the
injured employee or any dependent(s) of a deceased employee, whether or not
the employee or dependent is represented, and all parties of record with any final
order, decision or award issued by it on a disputed issue after submission. The
Workers' Compensation Appeals Board shall not designate a party, or their
attorney or agent of record, to serve any final order, decision or award relating
to a submitted issue.
Cal. Code Regs., tit. 8, § 31.7
An order for additional QME panels requires either party agreement or a WCJ order specifying the specialty and zip code.
The Board found that, absent party agreement, a WCJ order is necessary, but the record must support good cause.
From the decision · page 5Rule 31.7(b) and (c) provide for an additional QME panel in another specialty as follows
in relevant part: