Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2; Cal. Code Regs., tit. 8, 10955(a)
Removal is an extraordinary remedy rarely exercised by the Appeals Board; it will be granted only if the petitioner shows substantial prejudice or irreparable harm and that reconsideration will not be an adequate remedy if a final adverse decision issues.
The Appeals Board applied this standard and found the petitioner did not meet the burden to show substantial prejudice or irreparable harm or that reconsideration would be inadequate.
From the decision · page 1Removal 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.) 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).) Here, based upon the WCJ's analysis of
the merits of petitioner's arguments, we are not persuaded that substantial prejudice or irreparable
harm will result if removal is denied and/or that reconsideration will not be an adequate remedy if
the matter ultimately proceeds to a final decision adverse to petitioner.
Lab. Code, 5813; Cal. Code Regs., tit. 8, 10421
Willful failure to comply with an order may subject the offending party to sanctions.
The Appeals Board reminded parties of this standard in denying the petition for removal due to failure to timely comply with the WCJ order.
From the decision · page 2Conference Statement setting forth the issues and stipulations for trial, witnesses,
and a list of exhibits by the close of the mandatory settlement conference.
(e) The joint Pre-Trial Conference Statement, the disposition, and any orders shall
be completed by the close of the mandatory settlement conference and shall be filed
by the workers' compensation judge in the record of the proceedings on a form
prescribed and approved by the Appeals Board and shall be served on the parties.
(Italics added.) (Cal. Code Regs., tit. 8, § 10759(b), (e) (amended as of January 1,
2022.)
However, here the WCJ issued an order at the December 23, 2021, mandatory settlement
conference, which states that: "Parties are ORDERED to meet and confer and JOINTLY prepare
and efile a PTCS PRIOR to the next hearing date." She then continued the conference to January
27, 2022. Yet, the completed statement was not filed until March 17, 2022, after the parties
appeared on January 27, 2022, and March 17, 2022.
All parties are expected to comply with orders by a WCJ and by the Appeals Board, and if
they are unable to comply, they must seek the appropriate relief. Parties are reminded that a willful
failure to comply with an order could subject the offending party to sanctions. (Lab. Code, § 5813;
Cal. Code Regs., tit. 8, § 10421.)
Accordingly, we deny the Petition.