ADJ1743470 — California WCAB decision

What the panel ordered

Petition for Disqualification dismissed as untimely and denied on the merits.

Petition for Disqualification of WCJ filed by Applicant and dismissed by the WCAB panel as untimely and on the merits.

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 Petition for Disqualification was dismissed as untimely under WCAB Rule 10960 and denied on the merits because the Applicant failed to set forth specific facts of bias or prejudice by the WCJ.

From the decision · page 1We have considered the allegations of the Petition for Disqualification 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 for the reasons stated in the WCJ's report, which we adopt and incorporate, except as noted below, we will dismiss the Petition for Disqualification. Although the WCJ recommends denial of the Petition for Disqualification, we will dismiss it as untimely.

The facts that decided it

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

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

WCAB Rule 10960

A petition for disqualification must be filed within 10 days after service of notice of hearing or after grounds for disqualification are known.

The Petition for Disqualification was dismissed as untimely because it was filed long after the 10-day deadline following the alleged grounds for disqualification.

From the decision · page 2Finally, WCAB Rule 10960 provides that when the WCJ and "the grounds for disqualification" are known, a petition for disqualification "shall be filed not more than 10 days after service of notice of hearing or after grounds for disqualification are known." Here, the alleged grounds for disqualification occurred on February 2, 2018 and December 2, 2019. Therefore, the Petition for Disqualification is untimely and will be dismissed.

Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1034; Robbins v. Sharp Healthcare (2006) 71 Cal.Comp.Cases 1291, 1310-1311 (Significant Panel Decision)

A party's unilateral and subjective perception of bias does not constitute grounds for disqualification.

The Applicant's allegations of bias were found to be unsupported by specific facts and thus insufficient for disqualification.

From the decision · page 2Under no circumstances may a party's unilateral and subjective perception of bias afford a basis for disqualification. (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1034; Robbins v. Sharp Healthcare (2006) 71 Cal.Comp.Cases 1291, 1310-1311 (Significant Panel Decision).)

Labor Code section 5311; Code of Civil Procedure section 641

Grounds for disqualification include that the WCJ has formed or expressed an unqualified opinion as to the merits or demonstrated bias or enmity.

The Petition for Disqualification alleged bias under these statutes but was dismissed as untimely and unsupported on the merits.

From the decision · page 1Labor Code 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 "formed or expressed an unqualified opinion or belief as to the merits of the action" (Code Civ. Proc., § 641(f)) or 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)).

ADJ1743470 · November 2, 2021

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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