ADJ10620763 · April 23, 2024

The WCJ's order deferring the election issue was affirmed but amended to require creation of a full evidentiary record before adjudication, ensuring proper evaluation of applicant's election rights under Labor Code section 5500.5.

From the decision · page 6In summary, we are persuaded that a complete evidentiary record is necessary to the proper determination of the issue of applicant's election pursuant to section 5500.5. The WCJ's Order presently defers the issue of the election pending a determination of injury AOE/COE. However, because we believe a record must be created to address the issue of the election in the first instance, we will grant removal and affirm the Order, but amend it to reflect that the issue of applicant's election is deferred pending the creation of a full evidentiary record pursuant to Hamilton, supra, 66 Cal.Comp.Cases 473.

The record did not adequately set forth the arguments or evidence relied upon by the WCJ in denying and deferring the election

Favours Applicant prevailed

This lack of a complete record necessitated removal to create a full evidentiary record for proper adjudication of the election issue

From the decision · page 4Here, the record does not adequately set forth the arguments advanced by the parties, or the evidence relied upon by the WCJ in determining initially to deny applicant's election pursuant to section 5500.5, and later to defer the election. (Minutes of Hearing, September 13, 2023; Order Vacating Denial of Election, October 11, 2023.) Given the pivotal nature of the election to the procedural posture of the case in chief, we are persuaded that a full and complete record pursuant to Hamilton, supra, 66 Cal.Comp.Cases 473, is essential to the proper evaluation of applicant's election pursuant to section 5500.5. Accordingly, we will grant removal and return this matter to the trial level for the creation of adequate evidentiary record.

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 granted only if petitioner shows substantial prejudice or irreparable harm and reconsideration is inadequate remedy

Removal granted here to create a full evidentiary record on election issue

From the decision · page 2Removal 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).)

Hamilton v. Lockheed Corp. (2001) 66 Cal.Comp.Cases 473

Decisions must be based on admitted evidence and supported by substantial evidence

A full evidentiary record is necessary for proper evaluation of applicant's election under Labor Code section 5500.5

From the decision · page 3It is well established that decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corp. (2001) 66 Cal.Comp.Cases 473, 476 [2001 Cal. Wrk. Comp. LEXIS 4947] (Appeals Board en banc) (Hamilton). Furthermore, decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) An adequate and

Incomplete evidentiary record on election issue

From the decision · page 4Here, the record does not adequately set forth the arguments advanced by the parties, or the evidence relied upon by the WCJ in determining initially to deny applicant's election pursuant to section 5500.5, and later to defer the election. (Minutes of Hearing, September 13, 2023; Order Vacating Denial of Election, October 11, 2023.) Given the pivotal nature of the election to the procedural posture of the case in chief, we are persuaded that a full and complete record pursuant to Hamilton, supra, 66 Cal.Comp.Cases 473, is essential to the proper evaluation of applicant's election pursuant to section 5500.5. Accordingly, we will grant removal and return this matter to the trial level for the creation of adequate evidentiary record.