Aguirre, Patrick, Applicant v. CALIFORNIA INSTITUTION FOR MEN, legally uninsured, administered by STATE COMPENSATION INSURANCE FUND, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
PATRICK AGUIRRE, Applicant
vs.
CALIFORNIA INSTITUTION FOR MEN, legally uninsured,
administered by STATE COMPENSATION INSURANCE FUND, Defendants
Adjudication Number: ADJ12301639
Santa Barbara District Office
OPINION AND ORDER
GRANTING PETITION
FOR REMOVAL
AND DECISION
AFTER REMOVAL
Defendant has filed a petition for removal from the “Order Vacating Submission, Order
Directing Further Development of the Record, and Order Striking QME Reports” (Orders) issued
on October 30, 2024, by the workers’ compensation administrative law judge (WCJ).
Defendant contends that the qualified medical evaluator’s (QME) reporting should not
have been stricken from the record, which precludes defendant from providing the reporting to
subsequent evaluators.
We 	have 	received 	an 	Answer 	from 	applicant. 	The 	WCJ 	filed 	a 	Report 	and
Recommendation on Petition for Removal (Report) recommending that we deny removal.
We have considered the allegations of the Petition for Removal and the contents of the
WCJ’s Report. Based on our review of the record we will grant removal and as our Decision After
Removal, we will rescind the October 30, 2024 Orders and substitute a new order that the issue of
striking the reports of the QME is deferred.
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

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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, amongst other orders, the WCJ
ordered the reporting of the current QME stricken from the record, however, this order is without
legal support and thus, the order violates the parties right to due process, which constitutes
irreparable harm. Thus, removal is proper in this case.
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, § 10761.)
The Appeals Board has the discretionary authority to develop the record when the medical
record is not substantial evidence or when appropriate to provide due process or fully adjudicate
the issues. (Lab. Code, §§ 5701, 5906; Tyler v. Workers’ Comp. Appeals Bd. (1997) 56
Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers’ Comp. Appeals Bd. (1998)
62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) 	In our en banc decision in McDuffie v. Los
Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board
en banc), we stated that “[s]ections 5701 and 5906 authorize the WCJ and the Board to obtain
additional evidence, including medical evidence, at any time during the proceedings (citations)
[but] [b]efore directing augmentation of the medical record . . . the WCJ or the Board must
establish as a threshold matter that specific medical opinions are deficient, for example, that they
are inaccurate, inconsistent or incomplete. (Citations.)” (McDuffie, supra, 67 Cal.Comp.Cases at
141.)
Here, we agree with the WCJ that the current reporting of the QME is deficient and that a
regular physician was properly appointed, however, the fact that a QME report is not substantial
medical evidence goes to the weight of the evidence, not the admissibility. (Cal. Code Regs., tit.
8, § 10682(c).) 	While the current QME reporting does not appear to meet the standard for

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substantial medical evidence, that alone is not sufficient grounds to strike the reports from evidence
or to preclude those reports from being reviewed by a subsequent physician. Indeed, a regular
physician may wish to review the entire present medical record of a case so as to better understand
precisely what deficiencies exist in the current medical reporting. Striking a report requires a
substantive basis (e.g., a finding of evaluator bias, a report contains inadmissible evidence, a report
was obtained through impermissible ex-parte contact, etc.). We cannot find support in the current
record for striking the reports. 	However, we will defer that issue to the parties, so that if a
substantive basis for striking the reports exists, the parties may litigate that issue at the trial level
in the first instance.
Accordingly, we grant removal and as our Decision After Removal, we rescind the October
30, 2024 Orders, and substitute a new order that the issue of striking the reports of the QME is
deferred.1
For the foregoing reasons,
IT IS ORDERED that defendant’s Petition for Removal from the Orders issued on
October 30, 2024, by the WCJ is GRANTED.
IT IS FURTHER ORDERED as the Decision After Removal of 	the Workers’
Compensation Appeals Board that the Orders issued on October 30, 2024, by the WCJ are
RESCINDED with the following SUBSTITUTED therefor:
ORDERS
IT IS ORDERED that the submission in this matter is hereby
VACATED.
IT IS FURTHER ORDERED that the issue of striking the
reporting of Dr. Mabry-Height is deferred.
1 We have not reissued the order setting this matter for conference as that order is now moot.

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IT IS FURTHER ORDERED that this matter is RETURNED to the trial level for further
proceedings.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ JOSEPH V. CAPURRO, COMMISSIONER
I CONCUR,
/s/ CRAIG L. SNELLINGS, COMMISSIONER
/s/ JOSÉ H. RAZO, COMMISSIONER
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
NOVEMBER 17, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
PATRICK AGUIRRE
SCIF INSURED SAN BERNARDINO
FERRONE FERRONE WESTLAKE VILLAGE
EDL/mt
I certify that I affixed the official seal of
the Workers’ Compensation Appeals Board
to this original decision on this date.
BP