What the panel ordered
Petition for Reconsideration dismissed and Petition for Removal denied
Petition for Reconsideration and Petition for Removal of Judicial Disqualification denied and dismissed by WCAB panel decision
This docket was decided more than once. Shown here is the latest released decision; we also hold September 7, 2023.
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 the September 7, 2023 decision was not a final order and the petition lacked evidence to support bias or disqualification.
From the decision · page 1Applicant seeks reconsideration1 of the September 7, 2023 Opinion and Order Denying Petition for Disqualification (O&O), wherein we determined that applicant's petition did not establish the facts necessary to support disqualification of the workers' compensation administrative law judge (WCJ) pursuant to Labor Code section 5311, Workers' Compensation Appeals Board (WCAB) Rule 10960, and Code of Civil Procedure section 641(f) and (g).
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's petition did not comply with WCAB Rule 10960 requiring affidavit or declaration under penalty of perjury with detailed facts for disqualification.
Favours Defendant prevailed
This procedural deficiency led to dismissal of the petition for judicial disqualification.
From the decision · page 2On September 7, 2023, we denied the Petition for Judicial Disqualification. Our O&O observed that applicant's petition did not comply with WCAB Rule 10960 which requires the attachment of an affidavit or declaration under penalty of perjury stating in detail facts establishing one or more of the grounds for disqualification specified in section 641 of the Code of Civil Procedure. (O&O, p. 3; Cal. Code Regs., tit. 8, § 10960.) We also noted that the petition was not filed within 10 days of the date when the grounds for disqualification were known, which in this matter was the WCJ's alleged conduct during the December 29, 2022 trial proceedings. (Ibid.)
Petition for Reconsideration offered no independent evidence supporting bias or appearance of bias by the WCJ.
Favours Defendant prevailed
Lack of evidentiary support led to denial of the petition for removal.
From the decision · page 3Insofar as the petition seeks removal, we observe that allegations of bias and prejudice of a judge must set forth specifically the facts on which the charge is predicated; a statement containing nothing but conclusions and setting forth no facts constituting a ground of disqualification will not support judicial disqualification. (Mackie v. Dyer, supra, 154 Cal.App.2d 395, 399.) Here, the Petition for Reconsideration offers no independent evidence to support the allegation of bias or the appearance of bias on the part of the WCJ.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5311; Workers' Compensation Appeals Board Rule 10960; Code of Civil Procedure section 641(f) and (g)
Judicial disqualification requires specific facts supporting bias or prejudice under Labor Code section 5311, WCAB Rule 10960, and Code of Civil Procedure section 641(f) and (g).
The petition was dismissed for lack of timely filing and failure to provide affidavit or declaration under penalty of perjury with detailed facts supporting disqualification.
From the decision · page 1Applicant seeks reconsideration1 of the September 7, 2023 Opinion and Order Denying Petition for Disqualification (O&O), wherein we determined that applicant's petition did not establish the facts necessary to support disqualification of the workers' compensation administrative law judge (WCJ) pursuant to Labor Code section 5311, Workers' Compensation Appeals Board (WCAB) Rule 10960, and Code of Civil Procedure section 641(f) and (g).
What proof carried it
The evidence the panel weighed, by kind.
Applicant's petition lacked affidavit or declaration under penalty of perjury and was untimely filed beyond 10 days of the alleged grounds for disqualification.
From the decision · page 2On September 7, 2023, we denied the Petition for Judicial Disqualification. Our O&O observed that applicant's petition did not comply with WCAB Rule 10960 which requires the attachment of an affidavit or declaration under penalty of perjury stating in detail facts establishing one or more of the grounds for disqualification specified in section 641 of the Code of Civil Procedure. (O&O, p. 3; Cal. Code Regs., tit. 8, § 10960.) We also noted that the petition was not filed within 10 days of the date when the grounds for disqualification were known, which in this matter was the WCJ's alleged conduct during the December 29, 2022 trial proceedings. (Ibid.)
Petition for Reconsideration offered no independent evidence to support allegations of bias or appearance of bias by the WCJ.
From the decision · page 3Insofar as the petition seeks removal, we observe that allegations of bias and prejudice of a judge must set forth specifically the facts on which the charge is predicated; a statement containing nothing but conclusions and setting forth no facts constituting a ground of disqualification will not support judicial disqualification. (Mackie v. Dyer, supra, 154 Cal.App.2d 395, 399.) Here, the Petition for Reconsideration offers no independent evidence to support the allegation of bias or the appearance of bias on the part of the WCJ.
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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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