DANIEL KAISER, Applicant,
v.
CALIFORNIA ELECTRIC; CALIFORNIA CASUALTY INDEMNITY EXCHANGE, Defendant(s). Case
No. WCK 0039701
California Workers Compensation Decisions
Workers’ Compensation Appeals Board State Of California
January 1, 2001
OPINION
AND ORDER DENYING PETITION FOR REMOVAL
On
February 13, 1998, applicant, Daniel Kaiser, filed an
Application for Adjudication of Claim (application) which
alleged that, while employed as an electrician on November 5,
1996 by California Electric, he sustained injury to his left
shoulder while pulling wire through a conduit. On March 20,
1998, defendant filed a Petition for Removal with the
Workers' Compensation Appeals Board (Board) pursuant to
Labor Code section 5310. Defendant contends that the Board
does not have jurisdiction over applicant's claim because
the injury is covered by the alternative dispute resolution
process under Labor Code section 3201.5. Defendant requests
that the Board remove this matter to itself, dismiss the
application, and allow the parties an opportunity to resolve
applicant's claim by following the Alternative
Disputes Resolution Agreement, as established in its
collective bargaining agreement pursuant to the provisions of
Labor Code section 3201.5 and consistent with the Board's
decision of Becerra v. Eastside Reservoir Project/Advanco
Constructors (1997) 62 Cal.Comp.Cases 937.
After
reviewing the record, the Board will deny removal, but will
return this matter to the workers' compensation
administrative law judge (WCJ) for further proceedings and
decision. In so doing, and for the reasons set forth below,
the Board concludes: (1) that the WCJ does have the authority
to determine if dismissal of an application is appropriate
(i.e., the WCJ does have the authority to determine whether
applicant and his injury are subject to the provisions of
Labor Code section 3201.5); and (2) that, in determining
whether to dismiss an application, a notice of intention
and/or hearing procedure should generally be followed to
assure that the parties have had an adequate opportunity for
input and participation.
In
Becerra, supra, the Board addressed the issues of
jurisdiction and the procedures...
