ADJ20331276 · September 24, 2025

The Appeals Board found no substantial prejudice or irreparable harm to applicant if removal was denied and reconsideration would be an adequate remedy if the matter proceeds to a final decision adverse to applicant.

From the decision · page 1Applicant has filed a petition for removal from the order setting the matter for trial issued on April 10, 2025, by the workers' compensation administrative law judge (WCJ). The WCJ set the matter for a bifurcated trial on defendant's claim that applicant's injury is barred by the post- termination defense.

No record exists for the Appeals Board to review on the completeness of discovery.

Favours Defendant prevailed

Without a formal record, the Appeals Board cannot determine if additional discovery is warranted, so removal is not justified.

From the decision · page 2Applicant argues that the record is not complete; however, no record exists for the Appeals Board to review. We make no judgment at this time whether applicant is entitled to additional discovery since without a formal record available to review, we have no ability to make this determination.

Defendant is proceeding to trial on its affirmative defense of post-termination injury date.

Favours Defendant prevailed

Since defendant must establish the date of injury at trial, proceeding without removal does not prejudice applicant and places risk on defendant.

From the decision · page 2We would make the following observations. Labor Code section 3208.3(e) provides that a psychiatric claim may be barred where a claim is filed post-termination and is for a date of injury occurring pre-termination. Accordingly, at trial defendant must establish the date of applicant's injury to prevail on a post-termination claim. As defendant is proceeding to trial on its affirmative defense alone, and assuming applicant's argument is correct that no evidence exists to establish a date of injury, it would not appear that applicant would be prejudiced by proceeding to trial. Instead, it appears that defendant is proceeding at its own peril.

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 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 to deny the petition for removal because the applicant did not demonstrate substantial prejudice or irreparable harm and reconsideration would be adequate.

From the decision · page 1Applicant has filed a petition for removal from the order setting the matter for trial issued on April 10, 2025, by the workers' compensation administrative law judge (WCJ). The WCJ set the matter for a bifurcated trial on defendant's claim that applicant's injury is barred by the post- termination defense.