removal (California)

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removal (California)

Postby feelin'it on Wed May 17, 2017 4:16 pm

what is the rule and/or reg for removal of an arbitrator decision?
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Re: removal (California)

Postby LawAdvocate on Wed May 17, 2017 6:42 pm

You mean your remedy for appeal? They call that a Petition for Reconsideration.

Other wise I don't know.

My favorite article about arbitrators:

https://www.lexisnexis.com/legalnewsroo ... o-ask.aspx

yet it does not reference the removal of an arbitrator but I would think it would mirror the removal of a Judge. NOT sure.
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Re: removal (California)

Postby mytwocents on Thu May 18, 2017 5:29 am

Removal is the remedy for protesting an interim or non-final order as opposed to reconsideration which can only be taken from a final order. It doesn’t involve “removing” either a judge or an arbitrator. Rather the petitioner is asking the WCAB to remove the case from the trial level to itself to grant the requested remedy. An example would be where the case has been set for trial and one of the parties believes it should have been taken off calendar for further discovery. The petitioner must show significant prejudice and irreparable harm that couldn’t be cured by filing a petition for reconsideration from a final order. Thus, the WCAB doesn’t grant petitions for removal very often.
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Re: removal (California)

Postby feelin'it on Thu May 18, 2017 6:56 am

I was asking for the rule/reg for the "removal" procedure for arbitrator decision (yes, interim order). Is it identical to the WCJ procedure? if so, where does it say that?
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Re: removal (California)

Postby LawAdvocate on Thu May 18, 2017 7:39 am

No you were asking for "removal of an arbitrator decision?" There is no such thing. So don't get all huffy when you can't deal. Slow your roll.

So if it is an interim Order, it is a final Order, you must file a Petition for Reconsideration.

My word search for removal of arbitrator under Lexis Nexis yields nothing in case law, statute or regulations. I am not the perfect legal researcher but I am pretty good. Therefore the best we have for you is that arbitrators by the codes I posted in the article are pretty much equivalent to the WCAB Judges for all intents and purposes, with minor limitations on powers. Therefore, if you believe undue prejudice and harm you can prepare your Petition for Reconsideration and include the request for removal, of course entitling same "Petition for Reconsideration and Request for Removal of Arbitrator"

You have to create the analogy to the WCAB judge as outlined in the codes posted in the arbitration article and then by analogy you would use the same codes to request removal of an arbitrator and see what the WCAB says.
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Re: removal (California)

Postby mytwocents on Thu May 18, 2017 5:17 pm

Removal is authorized by Labor Code section 5310 which provides, in part: "The appeals board may appoint one or more workers’ compensation administrative law judges in any proceeding, as it may deem necessary or advisable, and may refer, remove to itself, or transfer to a workers’ compensation administrative law judge the proceedings on any claim." Furthermore, Labor Code section 5272 provides: “Arbitrators shall have all of the statutory and regulatory duties and responsibilities of a workers’ compensation judge, as set forth in Chapter 1 (commencing with Section 5300) of Part 4 . . .” subject to exceptions that aren’t relevant here. There is no specific statute linking removal with actions taken by arbitrators, but section 5310 is included in Chapter 1, commencing with Section 5300, of Part 4. There are WCAB regulations that set forth the ground rules for petitions for removal at 8 CCR sections 10842, 10843 and 10845. There is also a case, Smedlow v. WCAB 48 CCC 476, that the WCAB generally cites in connection with petitions for removal.
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