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California WCABPanel decision

ADJ13943845 · July 8, 2021

Defendant's Petition for Removal is denied.

Issues decided: 1
Medical opinions weighed: 0
Authorities named: 1
District office: Salinas

What the panel ordered

Defendant's Petition for Removal is denied.

Defendant filed a Petition for Removal of the WCJ's Minute Order issued April 28, 2021; the WCJ issued a report analyzing the merits of the petition; the Appeals Board reviewed the WCJ's report and defendant's petition and denied removal.

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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.

Reconsideration / removalDefendant prevailed

The Appeals Board found that defendant did not demonstrate substantial prejudice or irreparable harm if removal was denied, nor that reconsideration would be inadequate, based on the WCJ's analysis of the merits.

From the decision · page 1We have considered the allegations of defendant's Petition for Removal, applicant's answer and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and based upon the WCJ's analysis of the merits of petitioner's arguments in the WCJ's report, we will deny removal.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

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ADJ13943845 — California WCAB decision · SimilarCase

Defendant failed to show substantial prejudice or irreparable harm if removal was denied.

Favours Defendant prevailed

This failure meant the extraordinary remedy of removal was not justified.

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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) 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.

Defendant did not demonstrate that reconsideration would be an inadequate remedy if a final adverse decision issues.

Favours Defendant prevailed

Without this showing, removal was not warranted as reconsideration would suffice.

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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) 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.

Defendant's Petition contained misrepresentations of fact.

Favours Applicant prevailed

This undermined the credibility of the petition and supported denial.

From the decision · page 1Applicant's answer and the WCJ's report indicate that defendant's Petition contains misrepresentations of fact. Defendant is reminded that a party or attorney may be sanctioned for