What the panel ordered
Petition for disqualification dismissed for lack of affidavit and failure to state grounds
Petition for disqualification of the WCJ filed by applicant
This docket was decided more than once. Shown here is the latest released decision; we also hold April 22, 2021.
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 petition was dismissed because it was not verified by affidavit or declaration and failed to state grounds for disqualification as required by law and WCAB rules.
From the decision · page 1Applicant seeks disqualification of the workers' compensation administrative law judge (WCJ) based upon various allegations that the WCJ is generally biased. Applicant's petition is not verified.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's petition was not verified by affidavit or declaration under penalty of perjury as required by WCAB Rule 10960.
Favours Defendant prevailed
This procedural defect required dismissal of the petition.
From the decision · page 2Under WCAB Rule 10960, proceedings to disqualify a WCJ "shall be initiated by the filing of a petition for disqualification supported by an affidavit or declaration under penalty of perjury stating in detail facts establishing one or more of the grounds for disqualification...." (Cal. Code Regs., tit. 8, § 10960, italics added.) It has long been recognized that "[t]he allegations in a statement charging bias and prejudice of a judge must set forth specifically the facts on which the charge is predicated," that "[a] statement containing nothing but conclusions and setting forth no facts constituting a ground for disqualification may be ignored," and that "[w]here no facts are set forth in the statement there is no issue of fact to be determined." (Mackie v. Dyer (1957) 154 Cal.App.2d 395, 399.)
Applicant failed to state any grounds for disqualification under Code of Civil Procedure section 641.
Favours Defendant prevailed
Without stated grounds, the petition could not proceed.
From the decision · page 1We have considered the allegations of the Petition for Disqualification and the contents of the WCJ's Report. Based on our review of the record and based upon the WCJ's analysis of the merits contained in the WCJ's Report, we will dismiss the Petition for Disqualification as it does not contain a supporting affidavit or verified declaration, and it fails to adequately state grounds for disqualification. We defer to the trial level any proceedings as to disqualification of defense counsel.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 10960
A petition for disqualification must be supported by an affidavit or declaration under penalty of perjury stating in detail facts establishing grounds for disqualification.
The petition was dismissed for lack of affidavit or declaration and failure to state grounds.
From the decision · page 2Under WCAB Rule 10960, proceedings to disqualify a WCJ "shall be initiated by the filing of a petition for disqualification supported by an affidavit or declaration under penalty of perjury stating in detail facts establishing one or more of the grounds for disqualification...." (Cal. Code Regs., tit. 8, § 10960, italics added.) It has long been recognized that "[t]he allegations in a statement charging bias and prejudice of a judge must set forth specifically the facts on which the charge is predicated," that "[a] statement containing nothing but conclusions and setting forth no facts constituting a ground for disqualification may be ignored," and that "[w]here no facts are set forth in the statement there is no issue of fact to be determined." (Mackie v. Dyer (1957) 154 Cal.App.2d 395, 399.)
Code Civ. Proc., 641(f), (g)
Grounds for disqualification include that the WCJ has formed or expressed an unqualified opinion as to the merits or has demonstrated bias or enmity toward a party.
The petition failed to state any such grounds.
From the decision · page 1Labor Code2 section 5311 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. (§ 5311; see also Code Civ. Proc., § 641.) Among the grounds for disqualification under section 641 are that the
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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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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