Labor Code section 5311; Code Civ. Proc., 641
A party may seek to disqualify a WCJ under Labor Code section 5311 and Code of Civil Procedure section 641, with grounds including that the WCJ has formed or expressed an unqualified opinion on the merits or demonstrated bias or enmity.
The petition did not set forth facts under penalty of perjury sufficient to establish disqualification under these statutes and WCAB Rule 10960, so disqualification was denied.
From the decision · page 2Next, we address the petition to the extent it seeks to disqualify the WCJ. Labor Code
section 5311 provides that a party may seek to disqualify a WCJ upon any one or more of the
grounds specified in Code of Civil Procedure section 641. (Lab. Code, § 5311; see also Code Civ.
Proc., § 641.) Among the grounds for disqualification under section 641 are that the WCJ has
"formed or expressed an unqualified opinion or belief as to the merits of the action" (Code Civ.
Proc., § 641(f)) or that the WCJ has demonstrated "[t]he existence of a state of mind... evincing
enmity against or bias toward either party" (Code Civ. Proc., § 641(g)).
Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2; Cal. Code Regs., tit. 8, 10955(a)
Removal is an extraordinary remedy rarely exercised by the Appeals Board and will be granted only if substantial prejudice or irreparable harm will result if removal is not granted, and reconsideration will not be an adequate remedy if a final adverse decision issues.
The Appeals Board found the petitioner did not demonstrate substantial prejudice or irreparable harm and that reconsideration would be adequate, thus denying 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.