ADJ12089427 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; Findings and Order affirmed except Finding of Fact 4 (ex parte communication) is stricken.

Applicant seeks removal of Findings and Order issued by WCJ on October 30, 2020, challenging ex parte communication finding; WCJ recommended denial of removal; WCAB treated petition as reconsideration and granted reconsideration in part.

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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.

Other disputed issueApplicant prevailed

Applicant's due process rights were violated because the ex parte communication issue was not raised at trial, so the finding was stricken on reconsideration.

From the decision · page 4Here, the MOH reflects that the parties did not raise the issue of whether applicant's attorney's advocacy letter to the QME was an ex parte communication. (MOH, supra, at p. 2:18- 24.) Thus, we are persuaded that applicant's due process rights were violated when the WCJ made a finding on an issue that was not raised at trial. We note that in the Report, the WCJ acknowledged

The facts that decided it

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

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Cal. Code Regs., tit. 8, 10955(a)(1)-(2)

Petition for removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result if removal is not granted.

Applied to deny removal but grant reconsideration in part.

From the decision · page 4Removal 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)(1)-(2); 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).)

Lab. Code, 5904

Petitioner for reconsideration waives all objections not set forth in the petition.

Applied to limit reconsideration to the ex parte communication finding issue.

From the decision · page 3III. Section 5904 provides that the petitioner for reconsideration "shall be deemed to have finally waived all objections, irregularities, and illegalities concerning the matter upon which the

Lab. Code, 5909

Petition for reconsideration deemed denied if not acted on within 60 days, but time tolled due to procedural error.

Applied to toll time to act on petition due to Appeals Board's procedural error.

From the decision · page 3II. Labor Code section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) However, "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied applicant's petition for reconsideration because the Appeals Board had not acted on the petition within the statutory time limits of section 5909. The Appeals Board did not act on applicant's petition because it had misplaced the file, through no fault of the parties. The Court of Appeal reversed the Appeals Board's decision, holding that the time to act on applicant's petition was tolled during the period that the file was misplaced. (Id.) Like the Court in Shipley, "we are not convinced that the burden of the system's inadequacies should fall on [a party]." (Shipley, supra, 7 Cal.App.4th at p. 1108.) Applicant's Petition was timely filed on November 19, 2020. Our failure to act was due to a procedural error and our time to act on applicant's Petition was tolled.

ADJ12089427 · March 23, 2021

What the panel ordered

What was disputed, and how it came out

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What the panel did with the medical opinions

The rules the panel named

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