ADJ12674446 · July 25, 2025

The WCJ's May 12, 2025 Order Suspending Action contained unqualified opinions on attorney fees creating an appearance of bias, warranting disqualification and removal. The order was interlocutory and not final, so reconsideration was dismissed.

From the decision · page 1Applicant seeks reconsideration or in the alternative removal of the "Order Suspending Action" (Order) issued on May 12, 2025, by the workers' compensation administrative law judge (WCJ). Applicant further seeks disqualification of the WCJ.

The WCJ's May 12, 2025 Order Suspending Action contained unqualified opinions on attorney fees before hearing evidence.

Favours Applicant prevailed

This created an appearance of bias warranting disqualification and removal of the WCJ.

From the decision · page 6Here, applicant notes that multiple statements were made in the May 12, 2025 Order, which indicate that the WCJ has prejudged the issue of attorney's fees. The WCJ bluntly stated that the attorney's fee request in this case is excessive. While it is acceptable to note the appearance of things that may be, here the WCJ used fixed language indicating that the attorney's fees request is excessive, prior to reviewing any of the evidence, prior to conducting any hearing, and prior to allowing either party to be heard on the issue. While the WCJ's use of language may have simply been inartful, under these facts, disqualification is warranted as the WCJ has created the appearance of bias.

From the decision · page 2FACTS Decedent applicant (hereinafter "applicant") worked as a firefighter for the City of Costa Mesa Fire Department for 24 years. (Minutes of Hearing and Summary of Evidence (MOH/SOE), August 18, 2021, p. 3, lines 6-8.) On November 3, 2018, applicant was riding a bicycle when he was struck by a car resulting in multiple injuries, eventually leading to death on November 5, 2018. (Joint Exhibit 1, Report of QME M. Michael Mahdad, M.D., November 2, 2020, p. 1.) The sole issue for trial was injury arising out of and occurring in the course of employment. (MOH/SOE, supra at p. 2, lines 13-14.) Applicant was off-duty at the time of the accident and the facts of this case involved a significant dispute as to whether applicant's off-duty exercise was contemplated by his employment. Initially, the trial judge ruled in favor of defendant and ordered that applicant take nothing on this claim. (Findings and Order, September 9, 2021.) Thereafter, applicant sought reconsideration, which was granted.

Cal. Code Regs., tit. 8, 10844

WCAB Rule 10844 regarding attorney fee determination.

Applicant argued the WCJ failed to follow this rule in determining an appropriate fee.

From the decision · page 1Applicant argues, in pertinent part, that the WCJ presumptively determined in the Order what fee amount is reasonable, which is an unqualified opinion that creates an appearance of bias warranting disqualification. Applicant further argues that the WCJ failed to follow WCAB Rule 10844 (Cal. Code Regs., tit. 8, § 10844) in determining an appropriate fee.

Lab. Code, 5311; Code Civ. Proc., 641

Grounds for disqualification of WCJ under Labor Code section 5311 and Code of Civil Procedure section 641.

The WCJ was disqualified for expressing an unqualified opinion indicating bias.

From the decision · page 5III. Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) 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.) A petitioner must also 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).) Here petitioner alleges that the WCJ's Order Suspending Action contains unqualified opinions as to the adequacy of attorney's fees, which creates the appearance of bias warranting disqualification of the WCJ. For the reasons discussed below, we agree with this allegation and thus petitioner has established irreparable harm and substantial prejudice warranting removal. 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.

The WCJ's unqualified opinion on attorney fees before hearing evidence created an appearance of bias.

From the decision · page 6Here, applicant notes that multiple statements were made in the May 12, 2025 Order, which indicate that the WCJ has prejudged the issue of attorney's fees. The WCJ bluntly stated that the attorney's fee request in this case is excessive. While it is acceptable to note the appearance of things that may be, here the WCJ used fixed language indicating that the attorney's fees request is excessive, prior to reviewing any of the evidence, prior to conducting any hearing, and prior to allowing either party to be heard on the issue. While the WCJ's use of language may have simply been inartful, under these facts, disqualification is warranted as the WCJ has created the appearance of bias.