What the panel ordered
The Petition for Removal and the Petition for Disqualification were both dismissed by the Appeals Board.
Applicant filed a Petition for Removal and Disqualification of the WCJ, which was reviewed by the WCJ and the Appeals Board.
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 dismissed the Petition for Removal because the applicant's inability to file a Declaration of Readiness for an expedited hearing was not an interim or non-final order, and dismissed the Petition for Disqualification because the applicant failed to allege specific facts showing judicial bias and did not follow the required procedure under WCAB Rule 10960.
From the decision · page 1Applicant, in pro per, filed a Petition for Removal on December 5, 2022, contending:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's Declaration of Readiness for an expedited hearing was not accepted because the Electronic Adjudication Management System (EAMS) only allows one hearing to be scheduled at a time, and defendant had already scheduled a hearing earlier that day.
Favours Defendant prevailed
This fact showed that the applicant's inability to file the Declaration of Readiness was due to system constraints, not judicial bias or an interim order, leading to dismissal of the Petition for Removal.
From the decision · page 2On November 9, 2022, applicant attempted to file a DOR for an expedited hearing, in person at the San Francisco district office. Applicant's DOR was not accepted, because earlier that day, defendant had electronically filed a DOR requesting a status conference regarding the following issue: "internal QME unreasonable distance. WCAB assistance needed." Defendant's requested status conference was set for December 28, 2022. Applicant was not able to file his DOR because Electronic Adjudication Management System (EAMS) does not allow more than one hearing to be scheduled at a time. This was explained to applicant, and he was informed that once a hearing is scheduled he has to wait until it is completed before requesting another hearing.
Applicant did not allege any specific facts to show that the WCJ was biased, only that the WCJ did not set an expedited hearing due to system constraints.
Favours Defendant prevailed
Lack of specific factual allegations of bias and failure to follow required procedure under WCAB Rule 10960 led to dismissal of the Petition for Disqualification.
From the decision · page 3Here, applicant alleged that the WCJ failed to set an expedited hearing for applicant, but has not alleged any facts to show that the WCJ was biased. The facts alleged merely illustrate the constraints of EAMS, which are that only one hearing may be scheduled at a time. That is, applicant's DOR could not be filed and entered into the system because defendant had already scheduled a hearing earlier that day, thus locking out or preventing applicant from scheduling a hearing until the previously scheduled hearing was completed.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
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, 10955(a)
Removal is an extraordinary remedy rarely exercised by the Appeals Board and requires an interim or non-final order and a showing of substantial prejudice or irreparable harm if removal is not granted.
The Appeals Board dismissed the Petition for Removal because the applicant's inability to file a Declaration of Readiness for an expedited hearing was not an interim or non-final order, and the petitioner did not show substantial prejudice or irreparable harm.
From the decision · page 1We have considered the allegations of the Petition for Removal and the contents of the Report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record and upon the WCJ's analysis of the merits of petitioner's arguments in the WCJ's Report, we will dismiss applicant's Petition for Removal.
Labor Code section 5311; Code of Civil Procedure section 641; Cal. Code Regs., tit. 8, 10960
A party may seek to disqualify a WCJ upon grounds specified in Code of Civil Procedure section 641, including bias or prejudice, but must file a petition supported by detailed facts under penalty of perjury as required by WCAB Rule 10960.
The Appeals Board dismissed the Petition for Disqualification because the applicant did not allege specific facts showing bias and did not follow the required procedure under WCAB Rule 10960.
From the decision · page 2Also, applicant seeks to have the WCJ removed from his case due to an alleged perception of judicial bias. Labor Code section 53111 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. Proc., § 641.) Among the grounds for disqualification under section 641 are that the WCJ has "formed or expressed an unqualified opinion or belief as to the merits of the action" (Code Civ. Proc., § 641(f)) or that the WCJ has demonstrated "[t]he existence of a state of mind... evincing enmity against or bias toward either party" (Code Civ. Proc., § 641(g).)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's inability to file a Declaration of Readiness for an expedited hearing due to EAMS system limitations allowing only one hearing to be scheduled at a time.
From the decision · page 2On November 9, 2022, applicant attempted to file a DOR for an expedited hearing, in person at the San Francisco district office. Applicant's DOR was not accepted, because earlier that day, defendant had electronically filed a DOR requesting a status conference regarding the following issue: "internal QME unreasonable distance. WCAB assistance needed." Defendant's requested status conference was set for December 28, 2022. Applicant was not able to file his DOR because Electronic Adjudication Management System (EAMS) does not allow more than one hearing to be scheduled at a time. This was explained to applicant, and he was informed that once a hearing is scheduled he has to wait until it is completed before requesting another hearing.
Applicant did not allege any specific facts to show that the WCJ was biased, only that the WCJ did not set an expedited hearing due to system constraints.
From the decision · page 3Here, applicant alleged that the WCJ failed to set an expedited hearing for applicant, but has not alleged any facts to show that the WCJ was biased. The facts alleged merely illustrate the constraints of EAMS, which are that only one hearing may be scheduled at a time. That is, applicant's DOR could not be filed and entered into the system because defendant had already scheduled a hearing earlier that day, thus locking out or preventing applicant from scheduling a hearing until the previously scheduled hearing was completed.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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