Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274; Cal. Code Regs., tit. 8, former 10843(a), now 10955(a) (eff. Jan. 1, 2020)
Removal is an extraordinary remedy rarely exercised by the Appeals Board and will be granted only if the petitioner shows significant prejudice or irreparable harm if removal is not granted, and that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues.
The Appeals Board found that the defendant did not demonstrate significant prejudice or irreparable harm if removal was denied, nor that reconsideration would be inadequate.
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
significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs.,
tit. 8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) Here, for the reasons stated in the WCJ's report,
we are not persuaded that significant prejudice or irreparable harm will result if removal is denied
and/or that reconsideration will not be an adequate remedy.
Romero v. Costco Wholesale (2007) 72 Cal.Comp.Cases 824
An employee has 'received' a comprehensive medical-legal evaluation when the employee attends and participates in the medical evaluator's examination, and a new QME panel is not required once an applicant becomes represented if the evaluation has already occurred.
The Appeals Board applied Romero to find that since the applicant had already been evaluated by Dr. Burt, the defendant's request for a new QME panel was invalid.
From the decision · page 2Defendant contends that a new QME panel under section 4062.2 was required once
applicant became represented. This misconstrues the import of Romero v. Costco Wholesale
(2007) 72 Cal.Comp.Cases 824. The panel in Romero determined that "for purposes of sections
4062.1(e) and 4062.2(e) [....] an employee has `received' a comprehensive medical-legal
evaluation when the employee attends and participates in the medical evaluator's examination."
(Id. at p. 825.) Since Romero "had not attended and participated in an examination by the panel
QME when she changed from being not represented by an attorney to being represented, she had
not `received' a comprehensive medical-legal evaluation pursuant to section 4062.1 and is,
therefore, not precluded from requesting a new QME panel pursuant to section 4062.2." (Id. at p.
828.)