What the panel ordered
Petition for Removal granted; WCJ's July 27, 2021 Order Denying Petition for Change of Venue rescinded; venue transferred to Santa Rosa District Office.
Defendant sought removal of the WCJ's Orders Denying Petition for Change of Venue issued June 14, 2021 and July 27, 2021, which denied defendant's petitions for change of venue on grounds of improper caption and failure to identify permissibly self-insured status.
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.
The Appeals Board found that the petition for change of venue was timely and mandatory under Labor Code section 5501.5(c), despite the WCJ's denial based on caption deficiencies. The Board granted removal and ordered venue transfer to Santa Rosa District Office.
From the decision · page 3DISCUSSION Removal 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.) Here, we will grant removal because we are persuaded that petitioner has shown that substantial prejudice or irreparable harm will result if removal is not granted. Labor Code section 5501.5(a) sets forth the locations where an application for adjudication of claim may be filed: 1) the county where the injured employee or the dependent of a deceased employee resides, 2) the county where the injury allegedly occurred, and 3) the county where the employee's attorney maintains his or her principal place of business. (Lab.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant filed timely petitions for change of venue under Labor Code section 5501.5(c).
Favours Defendant prevailed
Mandates venue change if objection is timely, overriding WCJ's denial based on caption issues.
From the decision · page 4Labor Code section 5501.5(a)(1) or (a)(2)." (Cal. Code Regs., tit. 8, § 10488.) Labor Code section 5501.5 is mandatory if the objection is timely. Here the Application for Adjudication of Claim was filed on May 19, 2021, and the first Petition for Change of Venue was filed on June 14, 2021; therefore the petition is timely. The applicant resides in Santa Rosa and the injury occurred in Rohnert Park. Both Labor Code sections 5501.5(a)(1) and (a)(2) mandate that venue be changed to Santa Rosa since the petition was timely.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5501.5
Labor Code section 5501.5
Mandates venue change if objection to venue is timely and proper.
From the decision · page 3DISCUSSION Removal 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.) Here, we will grant removal because we are persuaded that petitioner has shown that substantial prejudice or irreparable harm will result if removal is not granted. Labor Code section 5501.5(a) sets forth the locations where an application for adjudication of claim may be filed: 1) the county where the injured employee or the dependent of a deceased employee resides, 2) the county where the injury allegedly occurred, and 3) the county where the employee's attorney maintains his or her principal place of business. (Lab.
California Code of Regulations, title 8, section 10330
California Code of Regulations, title 8, section 10330
Gives WCJ full power to hear and determine all issues and issue orders as necessary.
From the decision · page 4Next we will turn to the issue of whether the WCJ may "exercise [her] powers under California Code of Regulations, title 8, section 10330 and deny defendant's petition for change of venue" (Report, p. 5). The WCJ is correct in her Report that the WCJ has "full power, jurisdiction and authority to hear and determine all issues of fact and law presented and to issue any interim, interlocutory and final orders, findings, decisions and awards as may be necessary to the full adjudication of the case" under WCAB Rule 10330. While we are sympathetic to the WCJ's concerns, we are constrained by the language of the Labor Code section 5501.5. We remind defendant that it needs to comply with WCAB Rule 10617 and we acknowledge its apology for non-compliance.
California Code of Regulations, title 8, section 10390
California Code of Regulations, title 8, section 10390
Requires proper caption and notice of representation.
From the decision · page 2FACTUAL BACKGROUND Applicant claims injury to various body parts on April 19, 2021 while employed by the defendant as a public safety officer fire captain. The applicant filed the Application for Adjudication of Claim in the San Francisco District Office on May 13, 2021. Counsel for defendant filed its first Notice of Representation on June 4, 2021. The name of the defendants in the caption read "City of Rohnert Park and Athens Administrator Concord." Defendant filed its first Petition for Change of Venue on June 4, 2021. The name of the defendants in the caption read "City of Rohnert Park (Athens Administrator Concord)". Defendant contends that transferring venue to the Santa Rosa District Office is proper pursuant to Labor Code1 section 5501.5(c). The WCJ issued the first Order Denying Petition for Change of Venue on June 14, 2021. The Order states, in relevant part, "defendant has not included a proper caption nor filed a proper notice of representation pursuant to California Code of Regulations, title 8, section 10390. Defendant may refile an amended petition with a proper caption. There is no indication on the petition for change of venue as to whether the employer is permissibly self-insured and if so, the identity of the third-party administrator." Defendant filed a second Petition for Change of Venue on July 2, 2021.
California Code of Regulations, title 8, section 10488
California Code of Regulations, title 8, section 10488
Requires timely objection to venue within 30 days of notice of adjudication number.
From the decision · page 3Code, § 5501.5(a).) Subsection 5501.5(c) provides that, if the employer objects to venue selected on the basis of the employee's attorney's principal place of business, within 30 days of receipt of the information request form, then the application shall be filed pursuant to the first two paragraphs of subdivision (a), i.e., in the county where the employee, or dependent of a deceased employee, resides or where the injury allegedly occurred. WCAB Rule 10488 provides that a timely objection to venue pursuant to section 5501.5(c) must be filed within 30 days of receipt of the notice of the adjudication number. "A timely objection shall result in venue being assigned in accordance with
California Code of Regulations, title 8, section 10617
California Code of Regulations, title 8, section 10617
WCJ must consider merits of petition and may sanction for non-compliance with WCAB rules.
From the decision · page 4Under WCAB Rule 10617, the WCJ must consider the merits of the petition, and she may sanction under subdivision (e) for non-compliance with the rules of the Workers' Compensation Appeals Board. Here, the WCJ states in her Report that in lieu of ordering sanctions, she gave defendant an opportunity to correct the error in the caption. WCAB Rule 10390 does not provide for any consequences for failure of a party to comply with a rule. When a rule is silent about the consequences, the WCJ is limited to sanctioning for failure to comply. Again, we are sensitive to the WCJ's frustrations, however under Labor Code section 5501.5(c), the transfer of venue is mandatory as the petition was timely.
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