ADJ13188687 DOUGLAS BOPP, Applicant v. HARRIS RANCH BEEF COMPANY; PERMISSIBLY SELF-INSURED, ADMINISTERED BY TRISTAR RISK MANAGEMENT, Defendants

Full title: ADJ13188687 DOUGLAS BOPP, Applicant v. HARRIS RANCH BEEF COMPANY…

Court: Workers' Compensation Appeals Board State of California

Date published: Apr 5, 2024

No. ADJ13188687 (Cal. W.C.A.B. Apr. 5, 2024)

Opinion

1

DOUGLAS BOPP, Applicant v. HARRIS RANCH BEEF COMPANY; PERMISSIBLY SELF-INSURED, ADMINISTERED BY TRISTAR RISK MANAGEMENT, Defendants No. ADJ13188687 Workers' Compensation Appeals Board State of California April 5, 2024

OPINION AND ORDER DENYING PETITION FOR REMOVAL

CRAIG SNELLINGS, COMMISSIONER.

We have considered the allegations of the Petition for Removal and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record and based upon the WCJ's analysis of the merits of petitioner's arguments in the WCJ's report, we will deny removal.

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 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).) Here, based upon the WCJ's analysis of the merits of petitioner's arguments, we are not persuaded that substantial prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy if the matter ultimately proceeds to a final decision adverse to petitioner.

2

Decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) Furthermore, decisions of the Appeals Board 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. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) An adequate and complete record is necessary to understand the basis for the WCJ's decision. (Lab. Code, § 5313; see also Cal. Code Regs., tit. 8, § 10566.)

Here, once the parties proceed to trial, they will have an opportunity to create a record, raise all relevant issues, and submit evidence. Specifically, as part of that process, applicant will have an opportunity to raise the issue of whether further development of the record is appropriate. The trial WCJ can then consider the evidence and the legal arguments raised by the parties and determine how best to proceed.

3

For the foregoing reasons,

IT IS ORDERED that the Petition for Removal is DENIED.

WORKERS' COMPENSATION APPEALS BOARD

I CONCUR, JOSEPH V. CAPURRO, COMMISSIONER, ANNE SCHMITZ, DEPUTY COMMISSIONER.