CHERYL TAYLOR, Applicant v. SUTTER VISITING NURSES ASSOCIATION amp; HOSPICE DBA SCAH, Permissibly Self-Insured, Defendants

Full title: CHERYL TAYLOR, Applicant v. SUTTER VISITING NURSES ASSOCIATION amp…

Court: California Workers Compensation Decisions

Date published: Dec 31, 2021

No. ADJ13416542 (Cal. W.C.A.B. Dec. 31, 2021)

Opinion

CHERYL TAYLOR, Applicant v. SUTTER VISITING NURSES ASSOCIATION amp; HOSPICE DBA SCAH, Permissibly Self-Insured, Defendants No. ADJ13416542 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California December 31, 2021

Salinas District Office

OPINION AND ORDER DENYING PETITION FOR REMOVAL

KATHERINE A. ZALEWSKI, CHAIR

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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) 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.

We note that a mandatory settlement conference (MSC) took place on December 6, 2021. At that time, the WCJ ordered this matter set for trial on the issue of adequacy. We agree the trial should go forward so that the trial judge can consider the appropriateness of the medical-legal reporting and the questions raised by the WCJ in the report. Defendant will also have an opportunity at that time to raise the issue of further development of the record.

For the foregoing reasons,

IT IS ORDERED that the Petition for Removal is DENIED.

I CONCUR, MARGUERITE SWEENEY, COMMISSIONER, JOSé H. RAZO, COMMISSIONER