What the panel ordered
Petition for Removal denied by the Appeals Board.
Petition for Removal filed by defendant to remove a matter based on allegations of procedural errors and bad faith conduct.
This docket was decided more than once. Shown here is the latest released decision; we also hold February 1, 2024.
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.
The Appeals Board found no substantial prejudice or irreparable harm to petitioner if removal was denied and that reconsideration would be an adequate remedy, thus denying the petition for removal.
From the decision · page 1We have considered the allegations of the Petition for Removal 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.
Applicant filed a petition for additional panels on April 12, 2024, which was part of the record and served on defendant the same day.
Favours Applicant prevailed
This fact disproved defendant's allegation that no petition was filed or supported by evidence, undermining the basis for removal.
From the decision · page 2Here, the record reflects that applicant filed a petition for additional panels on April 12, 2024, and that defendant was served with the petition that same day. The basis for applicant's request was Dr. Schwartz's January 8, 2024 deposition, which was admitted into evidence as Exhibit Y at the trial on April 24, 2024. Further, the Minutes of Hearing from trial on April 24, 2024, indicate that applicant raised the issue of additional panels. (Minutes of Hearing, April 24, 2024, p. 2, lines 20-21.) Moreover, in his Opinion on Decision, the WCJ specifically points to the April 12, 2024 petition. (Opinion on Decision, p. 1.)
The Appeals Board found that removal is an extraordinary remedy and petitioner failed to show substantial prejudice or irreparable harm if removal was denied.
Favours Defendant prevailed
This legal standard and its application led to denial of the petition for removal.
From the decision · page 1We have considered the allegations of the Petition for Removal 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 rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274
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 Appeals Board applied this standard to deny the petition for removal because the petitioner failed to show substantial prejudice or irreparable harm.
From the decision · page 1We have considered the allegations of the Petition for Removal 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.
Cal. Code Regs., tit. 8, 10421(b); Labor Code section 5813
Bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay include actions done for an improper motive or are indisputably without merit, subject to Labor Code section 5813 sanctions.
The Appeals Board admonished defendant's attorneys and parties for making misleading statements in the petition, which may be subject to sanctions under Labor Code section 5813.
From the decision · page 2More significantly however, WCAB Rule 10421(b) provides that bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay include actions or tactics "that are done for an improper motive or are indisputably without merit." (Cal. Code Regs., tit. 8, § 10421(b).) The Rule then describes some of the violations that are subject to the provisions of Labor Code section 5813.
What proof carried it
The evidence the panel weighed, by kind.
Defendant's allegations that applicant did not file a petition for additional panels prior to the MSC and did not submit evidence in the Pre-Trial Conference Statement were found to be incorrect and misleading.
From the decision · page 2Here, the record reflects that applicant filed a petition for additional panels on April 12, 2024, and that defendant was served with the petition that same day. The basis for applicant's request was Dr. Schwartz's January 8, 2024 deposition, which was admitted into evidence as Exhibit Y at the trial on April 24, 2024. Further, the Minutes of Hearing from trial on April 24, 2024, indicate that applicant raised the issue of additional panels. (Minutes of Hearing, April 24, 2024, p. 2, lines 20-21.) Moreover, in his Opinion on Decision, the WCJ specifically points to the April 12, 2024 petition. (Opinion on Decision, p. 1.)
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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