Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4907(b)
Non-attorney representatives held to same professional standards as attorneys
Supports argument for electronic appearance rights
From the decision · page 3Labor Code section 4907(b)2 provides that non-attorney representatives are "held to the
same professional standards of conduct as attorneys." Section 5700 states in pertinent part that:
Cal. Code Regs., tit. 8, 10815, 10816, 10817
Appearance means presence at hearing; electronic appearances allowed under WCAB rules
Supports electronic appearance rights
From the decision · page 4"Either party may be present at any hearing, in person, by attorney, or by any other agent..."
"`Appearance' means a party or their representative's presence, pursuant to Labor Code section
5700, at any hearing." (Cal. Code Regs., tit. 8, § 10305(c).) WCAB Rules 10815, 10816, and 10817
(Cal. Code Regs., tit. 8, § 10815, 10816, 10817) allow electronic proceedings, appearances, and
testimony, and there is nothing in the Labor Code or in our Rules that requires that hearings be in
person.
Cal. Code Regs., tit. 8, 10955(a)
Removal granted only if petitioner shows substantial prejudice or irreparable harm and reconsideration is inadequate remedy
Applied to determine if removal should be granted
From the decision · page 3Removal 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 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.
Code of Civil Procedure section 641
Grounds for disqualification include bias or appearance of bias
Applied to disqualification petition
From the decision · page 4II.
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
demonstrated "[t]he existence of a state of mind... evincing enmity against or bias toward either
party." (Code Civ. Proc., § 641(g)). "Due Process is violated where there is even an appearance of
bias or unfairness in administrative hearings. (citations)" (Robbins v. Sharp Healthcare, et al.
(2006) 71 Cal. Comp. Cases 1291, 1302 [2006 Cal. Wrk. Comp. LEXIS 314] (Robbins).) The
appearance of bias may be sufficient to require disqualification. As to the appearance of bias, the
objective test to be applied is whether a person aware of the facts might reasonably entertain a
doubt that the judge would be able to act with impartiality (Id., at p. 1307). Bias against a party's
attorney may be a ground for disqualification. (Id., at p. 1306).
A petition to disqualify must be verified upon oath in the manner required for verified
pleadings in courts of record. (Cal. Code Regs., tit., tit. 8, § 10940(c).)
WCAB Rule 10960 provides:
Robbins v. Sharp Healthcare (2006) 71 Cal. Comp. Cases 1291
Due process violated by appearance of bias or unfairness in administrative hearings
Supports disqualification due to appearance of bias
From the decision · page 4II.
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
demonstrated "[t]he existence of a state of mind... evincing enmity against or bias toward either
party." (Code Civ. Proc., § 641(g)). "Due Process is violated where there is even an appearance of
bias or unfairness in administrative hearings. (citations)" (Robbins v. Sharp Healthcare, et al.
(2006) 71 Cal. Comp. Cases 1291, 1302 [2006 Cal. Wrk. Comp. LEXIS 314] (Robbins).) The
appearance of bias may be sufficient to require disqualification. As to the appearance of bias, the
objective test to be applied is whether a person aware of the facts might reasonably entertain a
doubt that the judge would be able to act with impartiality (Id., at p. 1307). Bias against a party's
attorney may be a ground for disqualification. (Id., at p. 1306).
A petition to disqualify must be verified upon oath in the manner required for verified
pleadings in courts of record. (Cal. Code Regs., tit., tit. 8, § 10940(c).)
WCAB Rule 10960 provides: