Cal. Code Regs., tit. 8, § 10955(a)
Removal is granted only if the petitioner shows substantial prejudice or irreparable harm will result if removal is not granted, and reconsideration is not an adequate remedy.
Applied to determine whether removal of the WCJ's order was appropriate.
From the decision · page 3Removal 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).) In light of the considerations discussed
below, we conclude that granting removal is appropriate in this matter.
Lab. Code, § 5311; Code Civ. Proc., § 641; Cal. Code Regs., tit. 8, § 10960
A party may seek to disqualify a WCJ upon grounds specified in Code Civ. Proc. § 641, but must set forth facts under penalty of perjury establishing such grounds.
Applied to determine whether the petition for disqualification was sufficient.
From the decision · page 4II. Disqualification
Labor 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)).
Under WCAB Rule 10960, proceedings to disqualify a WCJ "shall be initiated by the filing
of a petition for disqualification supported by an affidavit or declaration under penalty of perjury
stating in detail facts establishing one or more of the grounds for disqualification...." (Cal. Code
Regs., tit. 8, § 10960, italics added.) It has long been recognized that "[t]he allegations in a
statement charging bias and prejudice of a judge must set forth specifically the facts on which the
charge is predicated," that "[a] statement containing nothing but conclusions and setting forth no
facts constituting a ground for disqualification may be ignored," and that "[w]here no facts are set
forth in the statement there is no issue of fact to be determined." (Mackie v.