ADJ15052580 · February 22, 2022

The WCAB found the record insufficient to evaluate the timeliness of the petition and granted removal to allow further proceedings.

From the decision · page 3The issue that we face on removal is that there is an insufficient record to evaluate the WCJ's Order. The December 29, 2021, minutes are silent as to what evidence was considered, what stipulations were entered into at the conference, if any, or whether any evidence was admitted into the record. The information before the Board is insufficient to determine whether the petition for change of venue was correctly denied. For example, there is no summary of evidence and no exhibits were entered into evidence. Accordingly, we grant the Petition, rescind the Order, and return the matter to the trial level for further proceedings consistent with this decision.

The December 29, 2021 minutes were silent on evidence considered, stipulations, or admitted evidence for the change of venue petition.

Favours Defendant prevailed

This lack of record made it impossible to determine if the petition was correctly denied, justifying removal.

From the decision · page 3The issue that we face on removal is that there is an insufficient record to evaluate the WCJ's Order. The December 29, 2021, minutes are silent as to what evidence was considered, what stipulations were entered into at the conference, if any, or whether any evidence was admitted into the record. The information before the Board is insufficient to determine whether the petition for change of venue was correctly denied. For example, there is no summary of evidence and no exhibits were entered into evidence. Accordingly, we grant the Petition, rescind the Order, and return the matter to the trial level for further proceedings consistent with this decision.

Cal. Code Regs., tit. 8, 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and reconsideration is inadequate.

The WCAB found removal appropriate because the defendant showed prejudice and irreparable harm from the untimely denial and reconsideration would be inadequate.

From the decision · page 2I. 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); Cortez v. Workers' Comp. Appeals Bd., supra, 136 Cal.App.4th at p. 599, fn. 5; Kleemann v. Workers' Comp. Appeals Bd., supra, 127 Cal.App.4th at p. 280, fn. 2.) Additionally, 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).) We find that removal is appropriate in this matter.

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (Appeals Bd. en banc); Cal. Code Regs., tit. 8, 10803; Cal. Code Regs., tit. 8, 10515

The WCJ's decision must be based on admitted evidence in the record and include a proper trial record as required by Labor Code section 5313 and WCAB rules.

The WCAB found the WCJ's order lacked a sufficient record, with no evidence or stipulations, making the order improper and subject to removal.

From the decision · page 3must be included in a proper trial record. It is the responsibility of the parties and the WCJ to ensure that the record of the proceedings contains at a minimum, the issues submitted for decision, the admissions and stipulations of the parties, and the admitted evidence." (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 475 [2001 Cal. Wrk. Comp. LEXIS 4947] (Appeals Bd. en banc) (Hamilton).) The WCJ's opinion on decision "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Id. at p. 476, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350].) "For the opinion on decision to be meaningful, the WCJ must refer with specificity to an adequate and completely developed record." (Hamilton, supra, 66 Cal.Comp.Cases at p. 476.)

Insufficient record to evaluate the WCJ's Order denying change of venue; no summary of evidence or exhibits entered.

From the decision · page 3The issue that we face on removal is that there is an insufficient record to evaluate the WCJ's Order. The December 29, 2021, minutes are silent as to what evidence was considered, what stipulations were entered into at the conference, if any, or whether any evidence was admitted into the record. The information before the Board is insufficient to determine whether the petition for change of venue was correctly denied. For example, there is no summary of evidence and no exhibits were entered into evidence. Accordingly, we grant the Petition, rescind the Order, and return the matter to the trial level for further proceedings consistent with this decision.