ADJ12414651 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; removal of case to Appeals Board granted; decision after removal deferred.

Petition for Reconsideration filed by lien claimant challenging the Order Approving Compromise and Release; supplemental petition seeking removal filed; matter before Appeals Board for reconsideration and removal decision.

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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.

Reconsideration / removalDefendant prevailed

The Petition for Reconsideration was improperly filed on the eve of trial without a record, appearing to be a delay tactic; the Appeals Board has discretionary removal power and will investigate sanctions.

From the decision · page 1On February 6, 2024, former applicant's attorney and lien claimant, Susan Garrett, through hearing representative Lance Garrett, filed a Petition for Reconsideration contending, in essence, that the October 19, 2023 Order Approving Compromise and Release (OACR) issued by the workers' compensation administrative law judge (WCJ) should be set aside because the award of attorney's fees contained in the OACR issued in violation of law.

The facts that decided it

The rules the panel named

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

Labor Code section 5310

The Appeals Board is authorized under Labor Code section 5310 to remove proceedings to itself as necessary; removal is discretionary and extraordinary.

Removal granted on motion of the Appeals Board as an extraordinary remedy.

From the decision · page 2The Appeals Board is authorized under Labor Code section 5310 to remove to itself, as it deems necessary in any workers' compensation matter, "the proceedings in any claim." This power of removal is discretionary and is generally employed only as an extraordinary remedy. (Cal. Code Regs., tit. 8, § 10843, subd. (a); Castro v. Workers' Comp. Appeals Bd. (1996) 61 Cal.Comp.Cases 1460 (writ den.); Swedlow, Inc. v. Workers' Comp. Appeals Bd. (Smith) (1985) 48 Cal.Comp.Cases 476 (writ den.).)

Cal. Code Regs., tit. 8, 10515

Petitions for summary judgment or judgment on the pleadings are not permitted in workers' compensation proceedings.

Petition for Reconsideration was improper as a summary judgment attempt without record.

From the decision · page 2allow the trial judge to create a record and decide the issues raised, lien claimant instead filed a Petition for Reconsideration. In essence, lien claimant requests summary judgment issue in its favor without any record having been created. This is not proper. (§ 5313; see also, Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc); see also, Cal. Code Regs., tit. 8, § 10515 ["Demurrers, petitions for judgment on the pleadings and petitions for summary judgment are not permitted."].) It is unclear upon what good-faith basis the Petition for Reconsideration was filed. It appears that the Petition for Reconsideration may have been filed solely to delay the trial proceedings. Accordingly, we will issue an order denying reconsideration and grant removal on our own motion to investigate whether sanctions and/or an award of reasonable expenses, including costs and/or attorney's fees should issue.

ADJ12414651 · April 8, 2024

What the panel ordered

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