Cal. Code Regs., tit. 8, former 10843(a), now 10955(a) (eff. Jan. 1, 2020); 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]
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 Board applied this standard to determine that removal was warranted due to the incomplete QME report and the need for further proceedings.
From the decision · page 2Removal 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); Cortez, supra; Kleemann, supra.)
Additionally, 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, former
§ 10843(a), now § 10955(a) (eff. Jan. 1, 2020).)
Lab. Code, 5313; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (Appeals Bd. en banc)
The WCJ must issue a decision complying with Labor Code section 5313, making findings on all facts involved in the controversy and clearly designating the evidence forming the basis of the decision.
The Board emphasized the WCJ's duty to develop a complete record and make findings based on substantial evidence, which was not met due to the incomplete QME report.
From the decision · page 2The statutory and regulatory duties of a WCJ include the issuance of a decision that
complies with Labor Code section 5313.1 An adequate and complete record is necessary to
understand the basis for the WCJ's decision and the WCJ shall "... make and file findings upon
all facts involved in the controversy[.]" (Lab. Code, § 5313; Hamilton v. Lockheed Corporation
(2001) 66 Cal.Comp.Cases 473, 476 [2001 Cal.Wrk.Comp. LEXIS 4947] (Appeals Bd. en banc)2
(Hamilton).) As required by section 5313 and explained in Hamilton, "the WCJ is charged with
the responsibility of referring to the evidence in the opinion on decision, and of clearly designating
the evidence that forms the basis of the decision." (Hamilton, supra, at 475.) The purpose of this
requirement is to enable "the parties, and the Board if reconsideration is sought, [to] ascertain the
basis for the decision[.]" (Hamilton, supra, at 476, citing Evans v. Workmen's Comp. Appeals Bd.
(1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350]).)