What the panel ordered
Defendant's Petition for Reconsideration of the Findings of Fact, Order issued on September 25, 2025 by WCJ is denied.
Defendant sought removal of the Findings of Fact, Order issued on September 25, 2025 by WCJ, challenging a non-final finding related to discovery; the petition was treated as one for reconsideration but removal standard applied.
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.
Defendant failed to establish substantial prejudice or irreparable harm from the showing of the video to the AME during the evaluation, and reconsideration was an adequate remedy for any final decision.
From the decision · page 1Defendant sought removal1 of the Findings of Fact, Order (F&O) issued on September 25, 2025 by a workers' compensation administrative law judge (WCJ), wherein the WCJ found in pertinent part that "[t]he short, approximately three second video of the applicant's calf muscle shown to the AME during the AME appointment is permissible communication during a regular examination." (F&O, Finding of Fact No. 20.)2 Based on this finding of fact, the WCJ denied defendant's Petition for Replacement Panel.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant showed a 3-4 second video of his left calf muscle to the AME during the medical-legal evaluation to explain cramping symptoms.
Favours Applicant prevailed
This communication was found permissible and part of the natural examination, supporting denial of removal.
From the decision · page 15At the appointment, AME Hatch asked him about pain. the applicant told the AME about symptoms in his left leg and showed the AME a 3-4 second video of his left calf skin pulsating. the applicant testified credibly that the video was a better way to explain what he was feeling. The calf muscles twitches when he does too much physically, and he took the video to show his wife. At the appointment with the AME his leg was not cramping so he took his phone and showed the doctor the video (Joint Ex. 100 AME Dr. Hatch, MOH/SOE w/ the applicant testimony).
Defendant failed to depose the AME or applicant about the video and presented no evidence of prejudice or irreparable harm.
Favours Applicant prevailed
Lack of evidence of prejudice or harm supported denial of removal petition.
From the decision · page 5Defendants chose not to depose AME Hatch regarding the video's context, impact, or relevance to his evaluation and reporting. Defendants chose not to depose the applicant regarding the video to establish impact,
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
AME Hatch found the 3-4 second video shown by applicant during the evaluation was a permissible communication during the examination and did not materially influence or taint the medical opinion.
The AME reports and testimony showed the video was part of the natural examination and did not prejudice the defense or mislead the AME.
From the decision · page 15At the appointment, AME Hatch asked him about pain. the applicant told the AME about symptoms in his left leg and showed the AME a 3-4 second video of his left calf skin pulsating. the applicant testified credibly that the video was a better way to explain what he was feeling. The calf muscles twitches when he does too much physically, and he took the video to show his wife. At the appointment with the AME his leg was not cramping so he took his phone and showed the doctor the video (Joint Ex. 100 AME Dr. Hatch, MOH/SOE w/ the applicant testimony).
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, 10843(a)
Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is inadequate.
Applied to deny defendant's petition for removal due to lack of substantial prejudice or irreparable harm.
From the decision · page 4III. 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 significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10843(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, § 10843(a).)
Labor Code section 4062.3
Labor Code section 4062.3 allows communication by the applicant during an evaluation, including showing a video, as part of the natural examination.
Applied to find the video shown during the AME evaluation was permissible communication and did not warrant replacement of the AME.
From the decision · page 17There is no ambiguity in the language of the statute. The plain language of Lab. Code section 4062.3 allows communication by the applicant during an evaluation, including the showing of a video. There is no basis for a replacement of AME Hatch.
What proof carried it
The evidence the panel weighed, by kind.
Credible testimony of applicant that the video was a permissible communication during the AME evaluation and did not mislead the AME.
From the decision · page 5Here, for the reasons stated in the Opinion on Decision and the Report, defendant failed to establish any substantial prejudice or irreparable harm resulting from the WCJ's decision that the video shown by applicant to the AME during his evaluation was a permissible communication during a regular examination. In fact, we agree with the WCJ that based on what the WCJ found to be the credible testimony of applicant (Opinion on Decision, p. 8), the video was clearly a permissible communication pursuant to subdivision (i) of section 4062.3. We give great deference to the credibility determinations of the WCJ because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318- 319 [35 Cal.Comp.Cases 500, 504-505]; also see Meiner v. Ford Motor Co. (1971) 17 Cal.App.3d 127, 140-141.) Only evidence of considerable substantiality would warrant rejecting the WCJ's credibility determination. (Garza, supra, 3 Cal.3d at 318-319.) We find no such evidence in the record of this case.
Defendant did not depose the AME or applicant regarding the video and presented no evidence of prejudice.
From the decision · page 5Defendants chose not to depose AME Hatch regarding the video's context, impact, or relevance to his evaluation and reporting. Defendants chose not to depose the applicant regarding the video to establish impact,
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About this page
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