Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 10955(a)
Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result and reconsideration is inadequate.
The Appeals Board granted removal because the WCJ's striking of QME reports could cause prejudice and delay.
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, 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, the WCJ errantly ordered the
reporting of the current QME stricken from the record, which could cause the parties to conduct
substantial discovery without the use of these records, thereby delaying the progress of the case.
Accordingly, we conclude that defendant has established substantial prejudice or irreparable harm
under the order striking evidence.
Lab. Code, §§ 5701, 5906
The WCJ and Board may obtain additional evidence when medical evidence is not substantial or to provide due process.
The Board affirmed the WCJ's order to develop the record with a replacement QME due to insubstantial medical evidence.
From the decision · page 2Whether a report is substantial evidence goes to the weight of the evidence, not the
admissibility. (Cal. Code Regs., tit. 8, § 10682(c).) Thus, upon finding a report insubstantial, the
report is not stricken from the record. The sole question here is how to develop the record further
to ensure that the decision of the Appeals Board is based upon substantial evidence. To that extent,
the Appeals Board has the discretionary authority to develop the record when the medical record
is not substantial evidence or when appropriate to provide due process or fully adjudicate the
issues. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th
389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62
Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) In our en banc decision in McDuffie v.
McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc)
Before ordering augmentation of the medical record, the WCJ or Board must establish that specific medical opinions are deficient (inaccurate, inconsistent, or incomplete).
The WCJ properly found Dr. Darakjian's reports inaccurate, inconsistent, or incomplete, justifying record development.
From the decision · page 2Los Angeles
County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc),
we stated that "[s]ections 5701 and 5906 authorize the WCJ and the Board to obtain additional
evidence, including medical evidence, at any time during the proceedings (citations) [but] [b]efore
directing augmentation of the medical record... the WCJ or the Board must establish as a
threshold matter that specific medical opinions are deficient, for example, that they are inaccurate,
inconsistent or incomplete. (Citations.)" (McDuffie, supra, 67 Cal.Comp.Cases at 141.)