DWAYNE McCLENDON vs. CITY WIDE ELECRONIC SYSTEMS; BERKSHIRE HATHAWAY

In this case, Dwayne McClendon is the applicant and City Wide Electronic Systems and Berkshire Hathaway are the defendants. The Workers' Compensation Appeals Board denied the petition for removal, as removal is an extraordinary remedy rarely exercised by the Appeals Board. The Board found that the petitioner did not show that substantial prejudice or irreparable harm would result if removal was not granted, and that reconsideration would not be an adequate remedy if a final decision adverse to the petitioner ultimately issued. The Board also found that the WCAB had jurisdiction, as an application was filed with the WCAB but was not properly processed due to clerical error.

CITY WIDE ELECRONIC SYSTEMS; BERKSHIRE HATHAWAY DWAYNE McCLENDON WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIADWAYNE McCLENDON, Applicant,vs.CITY WIDE ELECRONIC SYSTEMS; BERKSHIRE HATHAWAY, Defendants.Case No. ADJ8083206ORDER DENYING PETITION FOR REMOVAL            We have considered the allegations of the Petition for Removal and the contents of the Report of the workers’ compensation administrative law judge with respect thereto. Based on our review of the record, and for the reasons stated in said Report, which we adopt and incorporate, 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, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers’ Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) 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, § 10843(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, § 10843(a).) For the reasons stated in the WCJ’s report, these standards have not been met in this case.            With respect to the jurisdictional argument, defendant is correct that the jurisdiction of the WCAB is invoked only by the filing of an application or other case opening document. (Cal. Code Regs., tit. 8, § 10403.) Here, however, defendant’s petition acknowledges that applicant’s attorney served it with a copy of an application for the June 24, 2008 injury claim, but it claims that the application was not filed with the WCAB. (Petition, at 2:9-2:11.) However, at the November 23, 2011 hearing, applicant’s , attorney alleged that an application was filed in 2008 but no ca

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