What the panel ordered
Petition for Removal granted; January 25, 2022 Order rescinded; matter returned to trial level for further proceedings and decision by WCJ
Petition for Removal of the January 25, 2022, Order denying election under Labor Code section 5500.5 and refusing additional witnesses, granted and matter returned to WCJ for further proceedings
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 WCAB found that a determination of applicant's competence was necessary before proceeding and that the WCJ erred in denying election and refusing additional witnesses, thus granting removal and returning the matter for further proceedings.
From the decision · page 1Applicant seeks removal of the January 25, 2022, Order wherein the workers' compensation administrative law judge (WCJ) set the matter for trial, did not allow applicant to elect against a defendant pursuant to Labor Code section 5500.5, and refused to allow applicant to add additional witnesses.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ denied applicant's election under Labor Code section 5500.5 and refused to allow additional witnesses, prejudicing applicant's case.
Favours Applicant prevailed
This denial and refusal were the basis for granting the petition for removal and returning the matter for further proceedings.
From the decision · page 1Applicant seeks removal of the January 25, 2022, Order wherein the workers' compensation administrative law judge (WCJ) set the matter for trial, did not allow applicant to elect against a defendant pursuant to Labor Code section 5500.5, and refused to allow applicant to add additional witnesses.
A determination of applicant's competence is required before proceeding, as the applicant may need a guardian ad litem.
Favours Applicant prevailed
This requirement justified rescinding the WCJ's order and returning the matter for a hearing on competence and guardian appointment.
From the decision · page 2Therefore, a determination on the issue of applicant's competence must be made before proceeding further with this case. Accordingly, we grant removal and, as our decision after removal return this matter to the trial level. The WCJ should hold a hearing to determine to whether applicant currently needs a guardian and to appoint a guardian ad litem if necessary.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code sections 5307.5, 5408; Lamin v. City of Los Angeles (2004)
A minor or incompetent injured worker must appear by guardian ad litem or conservator; WCAB may appoint guardian ad litem based on medical evidence of incompetency.
The WCAB applied this standard to require a determination of applicant's competence before proceeding and to authorize appointment of guardian ad litem if necessary.
From the decision · page 2A minor or incompetent injured worker must appear in a hearing before the Workers' Compensation Appeals Board by a guardian ad litem or a conservator. (Labor Code, § 5408.) The Workers' Compensation Appeals Board is authorized to decide the fact of incompetency of an injured employee and appoint a guardian ad litem. (Labor Code, § 5307.5, 5408.) The appointment of a guardian ad litem, however, must be based upon a medical report or other evidence that the adult injured worker is in fact incompetent. (Lamin v. City of Los Angeles (2004), 69 Cal. Comp. Cases 1002 [Appeals Board Panel Decision].)
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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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