WCAB PROCEDURE- Petition for Removal–Labor Code §5310–In this case, the Appeals Board granted reconsideration to review the propriety of an order closing discovery and not permitting discovery of Social Security records relating to applicant's potential claim of industrial injury to the psyche. (In this case, even if applicant was not claiming a psychiatric injury as a result of her workers' compensation injury claim, her current Social Security psychiatric disability is relevant to the issue of apportionment relating to "other factors," which include pathology, asymptomatic prior conditions, retroactive prophylactic work preclusions and the like.) (See Rio Linda Union School District v. Workers' Comp. Appeals Bd. (Scheftner ) (2005) 131 Cal.App.4th 517, 7 WCAB Rptr. 10,227.) Parris Jackson v. Workers' Compensation Appeals Board, Chabot-Las Positas Community College, Alameda County Schools 8 WCAB Rptr. 10,145 [Writ Denied]
WCAB PROCEDURE- Petition for Removal–Labor Code §5310–A petition for removal is discretionary. To support removal, a petitioner must demonstrate: (1) that the order will result in significant prejudice and/or irreparable harm, and (2) that reconsideration will not be an adequate remedy after the issuance of a final award. It is an extraordinary remedy that will be denied absent a showing of substantial prejudice or irreparable injury. ( See Swedlow v. Workers' Comp. Appeals Bd. (Smith) (1983) 48 Cal.Comp.Cases 476 [writ denied].) Debby Mitchell v. Workers' Compensation Appeals Board, Olsten Staffing Services, Inc. 8 WCAB Rptr. 10,146 [Writ Denied]
WCAB PROCEDURE¬ Petition for Removal–Labor Code §5310–In this case, the Appeals Board granted reconsideration to review the propriety of an order closing discovery and not permitting discovery of Social Security records relating to applicant's potential claim of industrial injury to the psyche. (In this case, even if applicant was not claiming a psychiatric injury as a result of her workers' compensation injury claim, her current Social Security psychiatric disability is relevant to the issue of apportionment relating to "other factors," which include pathology, asymptomatic prior conditions, retroactive prophylactic work preclusions and the like.) (See Rio Linda Union School District v. Workers' Comp. Appeals Bd. (Scheftner ) (2005) 131 Cal.App.4th 517, 7 WCAB Rptr. 10,227.) Parris Jackson v. Workers' Compensation Appeals Board, Chabot-Las Positas Community College, Alameda County Schools 8 WCAB Rptr. 10,145 [Writ Denied]
WCAB PROCEDURE- Petition for Removal–Labor Code §5310–A petition for removal is discretionary. To support removal, a petitioner must demonstrate: (1) that the order will result in significant prejudice and/or irreparable harm, and (2) that reconsideration will not be an adequate remedy after the issuance of a final award. It is an extraordinary remedy that will be denied absent a showing of substantial prejudice or irreparable injury. ( See Swedlow v. Workers' Comp. Appeals Bd. (Smith) (1983) 48 Cal.Comp.Cases 476 [writ denied].) Debby Mitchell v. Workers' Compensation Appeals Board, Olsten Staffing Services, Inc. 8 WCAB Rptr. 10,146 [Writ Denied]
WCAB PROCEDURE– Petition for removal–Board Rule 10843(b)–At any time within 20 days after the service of the order or decision, or the occurrence of the action in issue, any party may petition for removal based upon one or more of the following grounds: (1) the order, decision, or action will result in significant prejudice; (2) the order, decision or action will result in irreparable harm. The petitioner must also demonstrate that reconsideration will not be an adequate remedy after a final order, decision or award. Galvin Precision Machining v. Workers' Compensation Appeals Board (Tamara Wells) 7 WCAB Rptr. 10,365 [Writ Denied]
WCAB PROCEDURE– Petition for removal–Board Rule 10843(e)–The filing of a petition for removal does not terminate the judge's authority to proceed in a case or require the judge to continue or cancel scheduled hearings absent direction from the Appeals Board. Galvin Precision Machining v. Workers' Compensation Appeals Board (Tamara Wells) 7 WCAB Rptr. 10,365 [Writ Denied]
WCAB PROCEDURE– Petition for Removal may be granted only if it is shown that there will be substantial prejudice or irreparable harm if the petition is not granted. (See Swedlow, Inc. v. Workers' Comp. Appeals Bd. (Smith) (1985) 48 Cal.Comp.Cases 476 [writ denied].) James E. Weisman v. Workers' Compensation Appeals Board, Coopers & Lybrands 7 WCAB Rptr. 10,247 [Writ Denied]
WCAB PROCEDURE– Petition for Removal–California Code of Regulations, Title 8, §10843–Removal is available only when the petitioner has established substantial prejudice or irreparable injury will result if removal is not granted, and that reconsideration would not be an adequate remedy after issuance of the final order, decision or award. Failure to file a petition to remove within 20 days (1) after the service of the disputed order or (2) the occurrence of the disputed act shall constitute valid grounds for dismissal of the petition to remove. JPS/Earthlink, Inc. v. Workers' Compensation Appeals Board (Satwinder Gill) 6 WCAB Rptr. 10,315
WCAB PROCEDURE– Petition for Removal–Labor Code §5310–The remedy of removal is an extraordinary remedy available only when prejudice or irreparable injury can be shown. See Swedlow, Inc. v. Workers' Comp. Appeals Bd. (Smith) (1983) 48 Cal.Comp.Cases [writ denied].) [In this case, following the effective date of the new apportionment provisions of SB899, the WCJ ordered the matter back to the Agreed Medical Examiner for evaluation of apportionment under the new law.] Maria Sanchez v. Inamed Corporation, CIGA administered by Cambridge Integrated for Fremont Compensation, General Insurance Company 6 WCAB Rptr. 10,317
WCAB PROCEDURE– Removal– Labor Code §5310– The Appeals Board's power to remove a case to itself under Labor Code §5310 is an extraordinary remedy, and it is generally available only when the petitioner has established that substantial prejudice or irreparable injury will result if removal is not granted. (See Swedlow, Inc. v. Workers' Comp. Appeals Bd. (Smith) (1983) 48 Cal.Comp.Cases 476 (writ denied).) [In this case, the defendant City of Los Angeles contended that an order approving a compromise and release should be rescinded because its city charter provides that settlements exceeding $50,000.00 first must be approved by a city claims board. The removal petition was denied.] City of Los Angeles v. Workers' Compensation Appeals Board (Denise Lewis) 6 WCAB Rptr. 10,269
PETITION FOR REMOVAL– Cal. Code of Regs. Title 8, §10843– A Petition for Removal must be filed within 20 days after the service of the order or decision being complained of. [In this case, after six years and numerous appearances at the Anaheim board, applicant's counsel filed a motion for change of venue and after the motion was denied, failed to file the petition for removal within 20 days of the order denying the motion.] Sandra Sheridan v. Workers' Compensation Appeals Board, GTE/Broadspire. 6 WCAB Rptr. 10,124
WCAB PROCEDURE– Petition for Removal– Petitions for Removal were not meant as an alternative to a Petition for Reconsideration. A petition for removal may granted only if there is a showing of substantial prejudice or irreparable harm relating to the legal aspects of the case. (See Swedlow Inc. v. Workers' Comp. Appeals Bd. (Smith) (1983) 48 Cal.Comp.Cases 476.) [In this case, the order challenged by applicant ordered the parties to agree on an AME or the WCJ would appoint a QME. There was not showing of prejudice or irreparable harm.] Torigoe Junko v. Workers Compensation Appeals Board, Tadeo Suzuki, D.D.S. 6 WCAB Rptr. 10,080
WCAB PROCEDURE– Petition for Removal– Labor Code §5310– A party seeking removal must establish irreparable harm will result if the order in question is allowed to stand. (See Blaylock v. Workers' Comp. Appeals Bd., Negherbon (2003) 5 WCAB Rptr. 10,070.) [In this case, the WCJ had reviewed all the records requested by applicant and determined that they were not protected by the attorney work product or privileged. The records consisted mainly of bills, invoices and records that may lead to discoverable evidence relevant to the issues in the case.] Accelerated Resource Management/Kemper Employers Insurance Co. v. Workers' Compensation Appeals Board (Jerry Butler) 6 WCAB Rptr. 10,009
WCAB PROCEDURE– Petition for Removal–Labor Code §5310–A party seeking removal must establish that irreparable harm will result if the order is allowed to stand. [In this case, the WCJ before granting the discovery order reviewed all 1,600 pages of documents and determined that they were not protected by the attorney work product and thus were not privileged. Accelerated Resource Management v. Workers' Compensation Appeals Board (Jerry Butler) 5 WCAB Rptr. 10,214
WCAB PROCEDURE– Petition for Removal– WCAB Rule 10843 provides that at any time within 20 days after service of the order or decision, or of the occurrence of the action in issue, any party may Petition for Removal based upon one or more of the following grounds: (1) the order, decision or action will result in significant prejudice, (2) the order, decision or action will result in irreparable harm. In addition, the rule provides that the petitioner must demonstrate that reconsideration will not be an adequate remedy after the issuance of a final order, decision or award. The rule also provides that the filing of a petition to remove does not terminate the WCJ's authority to proceed in a case or require the WCJ to continue or cancel a previously scheduled proceeding absent direction from the Appeals Board. Hario Hermosillo v. Workers' Compensation Appeals Board, Wagner Dairy. 5 WCAB Rptr. 10,181
WCAB PROCEDURE– Petition for Removal– Labor Code §5310– The remedy of removal is an extraordinary remedy available only when prejudice or irreparable injury can be shown. No irreparable damage could be shown in this case when the WCJ vacated an order of submission and ordered further development of the record. Barry Blaylock v. Workers' Compensation Appeals Board, Negherbon and Safeco. 5 WCAB Rptr. 10,070
WCAB PROCEDURE– Petition for Removal– Labor Code §5310– Removal is an extraordinary remedy, which will not be granted absent a showing that substantial prejudice or irreparable harm will result if removal is not granted. (Inthis cae applicant's counsel frustrated defendant's efforts to conclude applicant's deposition prior to the MSC. Terry Robinson v. Workers' Compensation Appeals Board, Patterson Frozen Foods. 4 WCAB Rptr. 10,253
REMOVAL– Labor Code §5310– The Appeals Board's power to remove a case to itself under Labor Code §5310 is an extraordinary remedy, rarely exercised by the Appeals Board, and it is generally available only where the petitioner has established that substantial prejudice or irreparable injury will result if removal is not granted. In this case the petitioner did not show substantial prejudice or irreparable harm for failure to continue a hearing. Hee Il Sin v. Workers' Compensation Appeals Board (Florida Guena) 3 WCAB Rptr. 10,261
PETITION FOR REMOVAL– A petition for removal is deemed an extraordinary remedy seldom applied by the Appeals Board unless there is a showing that substantial prejudice or irreparable injury will occur. (See, Swedlow v. Workers' Comp. Appeals Bd. (1983) 48 Cal.Comp.Cases 476.) Darco Construction v. Workers' Compensation Appeals Board (Manuel Moreno) 3 WCAB Rptr. 10,029
WCAB PROCEDURE– Issuance of new decision by WCJ– Title 8, Section 10859– The WCJ does not have to take new evidence after rescinding his first decision before issuing a new decision usner WCAB rule 10859. (See, North American Transformer v. Workers' Comp. Appeals Bd. (Wellwood) (1995) 60 Cal.Comp.Cases 437.) Freeman Decorating/Sullivan Transfer v. Workers Compensation Appeals Board (Reynaldo Chavez, Sr.) 3 WCAB Rptr. 10,029
