Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, §§ 5900(a), 5902, 5903
A petition for reconsideration may only be taken from a final order, decision, or award.
The WCJ's Finding and Order was not a final order and thus not subject to reconsideration.
From the decision · page 2I.
A petition for reconsideration may properly be taken only from a "final" order, decision,
Cal. Code Regs., tit. 8, § 31.5(a)(2)
Replacement of a QME panel is governed by AD Rule 31.5(a)(2), which applies when a QME cannot schedule an examination within 60 or 90 days of the initial request.
The WCJ ordered replacement of the QME panel based on this rule, but the record did not support the scheduling issue as the basis for replacement.
From the decision · page 1Applicant seeks reconsideration of the Finding and Order Re: Replacement QME Panel
pursuant to 8 CCR § 31.5 (Represented Case) (F&O) issued by the workers' compensation
administrative law judge (WCJ) on November 30, 2020. As relevant herein, the WCJ found that
Qualified Medical Evaluator (QME) Dr. David Willat could not schedule an examination within
60 or 90 days pursuant to Administrative Director (AD) Rule 31.5(a)(2). (Cal. Code Regs., tit. 8,
§ 31.5(a)(2).) The WCJ ordered the Medical Director to issue a replacement QME panel.
Lab. Code, § 5313
The WCJ must make findings based on admitted evidence and clearly designate the evidence forming the basis of the decision.
The WCJ's Finding and Order lacked sufficient admitted evidence to support the decision, requiring remand for further proceedings.
From the decision · page 3II.
Removal 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
significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit.
8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a),
now § 10955(a) (eff. Jan. 1, 2020).)
A WCJ is required to "make and file findings upon all facts involved in the controversy
and an award, order, or decision stating the determination as to the rights of the parties.