ADJ9082866 — California WCAB decision

What the panel ordered

Petition for removal denied

Petition for removal from order of continuance filed by applicant, seeking to proceed to trial on issue of functional capacity evaluation

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This docket was decided more than once. Shown here is the latest released decision; we also hold March 8, 2024, December 1, 2021.

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 the petitioner 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 and the record.

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, 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 not persuaded that substantial prejudice or irreparable

The facts that decided it

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

The WCJ continued the matter and indicated that a functional capacity evaluation should be requested by the applicant's physician if needed for medical treatment.

Favours Defendant prevailed

This showed the proper procedural path for obtaining a functional capacity evaluation and supported denial of removal.

From the decision · page 2The WCJ continued this matter and commented in the minutes of hearing that applicant's physician needs to write a request for a functional capacity evaluation if one is needed. To the extent that applicant seeks a functional capacity evaluation as part of his medical treatment, the WCJ is correct that such an evaluation should proceed through the primary treater. However, to the extent that applicant seeks a functional capacity evaluation for purposes of establishing his level of permanent disability or rebutting a scheduled rating, upon return the WCJ may wish to consider whether a functional capacity evaluation should be ordered on a medical-legal basis.

The WCJ's analysis of the merits indicated no substantial prejudice or irreparable harm would result if removal was denied, and reconsideration would be an adequate remedy.

Favours Defendant prevailed

This reasoning directly supported the denial of the petition for removal.

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, 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 not persuaded that substantial prejudice or irreparable

ADJ9082866 · January 9, 2026

What the panel ordered

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The facts that decided it

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