ADJ11922504 · June 1, 2023

The WCJ's order was interlocutory and not a final order; defendant was denied due process by not being allowed to rebut or object before the order issued, causing substantial prejudice and irreparable harm. Removal was warranted and the matter was remanded for further proceedings.

From the decision · page 3Here, the WCJ issued the order for additional QME panels in internal medicine and psychiatry without providing defendant with the opportunity to offer evidence in rebuttal or to otherwise object. (F&O, March 21, 2023; see also Answer, pp. 2:25-27, 3:1-2.) The WCJ therefore decided the matter in violation of defendant's right to due process and a fair hearing, which caused defendant substantial prejudice and irreparable harm that reconsideration cannot cure. Thus, we conclude that removal is warranted and will return this matter to the trial level for the WCJ to create an evidentiary record regarding the issue of the disputed QME panels and to provide each party with an opportunity to submit evidence regarding this issue.

The WCJ issued an order for additional QME panels without giving defendant an opportunity to offer evidence in rebuttal or to object.

Favours Defendant prevailed

This violated defendant's due process rights, caused substantial prejudice and irreparable harm, and warranted removal and remand.

From the decision · page 3Here, the WCJ issued the order for additional QME panels in internal medicine and psychiatry without providing defendant with the opportunity to offer evidence in rebuttal or to otherwise object. (F&O, March 21, 2023; see also Answer, pp. 2:25-27, 3:1-2.) The WCJ therefore decided the matter in violation of defendant's right to due process and a fair hearing, which caused defendant substantial prejudice and irreparable harm that reconsideration cannot cure. Thus, we conclude that removal is warranted and will return this matter to the trial level for the WCJ to create an evidentiary record regarding the issue of the disputed QME panels and to provide each party with an opportunity to submit evidence regarding this issue.

There was no evidentiary record to support the WCJ's decision to order additional QME panels.

Favours Defendant prevailed

Without a record, the Appeals Board could not determine if the decision was supported by substantial evidence, requiring remand.

From the decision · page 4Here, there is no record upon which to address the WCJ's decision to order the additional QME panels in internal medicine and psychiatry. Without an evidentiary record, we are unable to determine whether the WCJ's decision is supported by substantial evidence. Therefore, we also return this matter to the trial level for the WCJ to prepare a proper record of the proceedings in accordance with section 5313 and Hamilton.

Lab. Code §§ 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068

A petition for reconsideration may only be taken from a final order, which determines a substantive right or threshold issue; interlocutory procedural or evidentiary decisions are not final orders.

Applied to determine that the WCJ's order was not a final order and reconsideration was not proper.

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 granted only if substantial prejudice or irreparable harm will result and reconsideration is not an adequate remedy.

Applied to determine that removal was warranted due to due process violation and lack of adequate remedy by reconsideration.

From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (Cortez) (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (Kleemann) (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 substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(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, § 10955(a).)

Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151; Carstens v. Pillsbury (1916) 172 Cal. 572; Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284

Parties have a fundamental right to due process and a fair hearing, including the opportunity to offer evidence and object.

Applied to find that defendant's due process rights were violated by not being allowed to rebut or object before the WCJ's order.

From the decision · page 3Parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) A fair hearing is "one of `the rudiments of fair play' assured to every litigant...." (Id. at p. 158.) As stated by the Supreme Court of California in Carstens v. Pillsbury (1916) 172 Cal. 572, "the commission...must find facts and declare and enforce rights and liabilities, - in short, it acts as a court, and it must observe the mandate of the constitution of the United States that this cannot be done except after due process of law." (Id. at p. 577.) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584].)

Lab. Code § 5313; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

WCJ must make findings on all facts, base decisions on admitted evidence, and provide reasons for determinations.

Applied to find that the WCJ's order lacked an evidentiary record and was not supported by substantial evidence.

From the decision · page 3Additionally, Labor Code section 53132 requires the WCJ to "make and file findings upon all facts involved in the controversy and [make and file] an award, order, or decision stating the determination as to the rights of the parties...[and include] a summary of the evidence received and relied upon and the reasons or grounds upon which the determination was made." (Lab. Code, § 5313.) The WCJ's decision "must be based on admitted evidence in the record" (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 478 (Appeals Bd. en banc)), and the decision must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) In Hamilton, we held that the record of proceedings must contain, at a minimum, "the issues submitted for decision, the

Defendant was not provided an opportunity to offer evidence in rebuttal or to object before the WCJ ordered additional QME panels.

From the decision · page 3Here, the WCJ issued the order for additional QME panels in internal medicine and psychiatry without providing defendant with the opportunity to offer evidence in rebuttal or to otherwise object. (F&O, March 21, 2023; see also Answer, pp. 2:25-27, 3:1-2.) The WCJ therefore decided the matter in violation of defendant's right to due process and a fair hearing, which caused defendant substantial prejudice and irreparable harm that reconsideration cannot cure. Thus, we conclude that removal is warranted and will return this matter to the trial level for the WCJ to create an evidentiary record regarding the issue of the disputed QME panels and to provide each party with an opportunity to submit evidence regarding this issue.