Castaneda, Andrea, Applicant v. GOOD SAMARITAN SHELTER; PRO CENTURY INSURANCE COMPANY, administered by ILLINOIS MIDWEST INSURANCE AGENCY, LLC, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
ANDREA CASTANEDA, Applicant
vs.
GOOD SAMARITAN SHELTER;
PRO CENTURY INSURANCE COMPANY, administered by
ILLINOIS MIDWEST INSURANCE AGENCY, LLC, Defendants
Adjudication Number: ADJ20437328
Santa Barbara District Office
OPINION AND ORDERS
GRANTING PETITION
FOR RECONSIDERATION
AND DECISION
AFTER RECONSIDERATION
Applicant seeks removal of the “Findings and Orders” (F&O) issued on August 29, 2025,
by the workers’ compensation administrative law judge (WCJ). The WCJ found, in pertinent part,
that applicant was not entitled to a remote psychiatric evaluation pursuant to Administrative
Director Rule 46.3 (Cal. Code Regs., tit. 8, § 46.3,) and ordered a replacement panel qualified
medical evaluator.
Applicant contends that the WCJ should not have strictly applied AD Rule 46.3, but instead
should have analyzed whether good cause existed to allow a remote examination.
We 	have 	received 	an 	answer 	from 	defendant. 	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 treat the petition as seeking
reconsideration of the F&O, as the F&O contains both final and non-final orders. We will grant
applicant’s petition for reconsideration and as our Decision After Reconsideration, we will rescind
the August 29, 2025 F&O and return this matter to the trial level for further proceedings.

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FACTS
Per the WCJ’s Report:
Applicant filed an Application for Adjudication of Claim on January 27, 2025,
alleging inter alia injury to her nervous system. Defendant filed an answer averring
the claim was denied on February 12, 2025.
A PQME panel in psychology was requested, and after both sides struck a name,
Steven P. Barnett, M.D., was the remaining name.
The parties contacted Dr. Barnett, who advised he will only do remote evaluations;
no in-person examination would take place.
Applicant agrees to the remote evaluation; however, Defendant will not stipulate to
it.
The matter proceeded to trial and a Findings of Fact and Order issued holding
Applicant was not entitled to a remote evaluation and the parties are entitled to a
replacement PQME panel. It is from that determination that Applicant files this
instant removal petition.
(WCJ’s Report, p. 2.)
DISCUSSION
I.
Former Labor Code1 section 5909 provided that a petition for reconsideration was deemed
denied unless the Appeals Board acted on the petition within 60 days from the date of filing.
(Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part
that:
(a) A petition for reconsideration is deemed to have been denied by
the appeals board unless it is acted upon within 60 days from the
date a trial judge transmits a case to the appeals board.
(b) (1) When a trial judge transmits a case to the appeals board, the
trial judge shall provide notice to the parties of the case and the
appeals board.
(2) For purposes of paragraph (1), service of the accompanying
report, pursuant to subdivision (b) of Section 5900, shall constitute
providing notice.
(§ 5909.)
1 All future references are to the Labor Code unless noted.

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Under section 5909(a), the Appeals Board must act on a petition for reconsideration within
60 days of transmission of the case to the Appeals Board. Transmission is reflected in Events in
the Electronic Adjudication Management System (EAMS). Specifically, in Case Events, under
Event Description is the phrase “Sent to Recon” and under Additional Information is the phrase
“The case is sent to the Recon board.”
Here, 	according 	to 	Events, 	the 	case 	was 	transmitted 	to 	the 	Appeals 	Board 	on
September 12, 2025, and 60 days from the date of transmission is Tuesday, November 11, 2025,
(Veteran’s Day) which by operation of law means this decision is due by Wednesday, November
12, 2025. (Cal. Code Regs., tit. 8, § 10600.). This decision is issued by or on November 12, 2025,
so that we have timely acted on the Petition as required by section 5909(a).
Section 5909(b)(1) requires that the parties and the Appeals Board be provided with notice
of transmission of the case. Transmission of the case to the Appeals Board in EAMS provides
notice to the Appeals Board. Thus, the requirement in subdivision (1) ensures that the parties are
notified of the accurate date for the commencement of the 60-day period for the Appeals Board to
act on a petition. Section 5909(b)(2) provides that service of the Report and Recommendation shall
be notice of transmission.
According to the proof of service for the Report and Recommendation by the WCJ, the
Report was served on September 12, 2025, and the case was transmitted to the Appeals Board on
September 12, 2025. Service of the Report and transmission of the case to the Appeals Board
occurred on the same day. Thus, we conclude that the parties were provided with the notice of
transmission required by section 5909(b)(1) because service of the Report in compliance with
section 5909(b)(2) provided them with actual notice as to the commencement of the 60-day period
on September 12, 2025.
II.
As stated in our en banc decision:
A petition for reconsideration may properly be taken only from a “final” order,
decision, or award. (Lab. Code, §§ 5900(a), 5902, 5903.) A “final” order has
been defined as one that either “determines any substantive right or liability of
those involved in the case” (Rymer v. Hagler (1989) 211 Cal. App. 3d 1171,
1180, 260 Cal. Rptr. 76; Safeway Stores, Inc. v. Workers’ Comp. Appeals Bd.
(Pointer) (1980) 104 Cal. App. 3d 528, 534–535 [163 Cal. Rptr. 750, 45 Cal.
Comp. Cases 410]; Kaiser Foundation Hospitals v. Workers’ Comp. Appeals
Bd. (Kramer) (1978) 82 Cal. App. 3d 39, 45 [43 Cal. Comp. Cases 661]) or

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determines a “threshold” issue that is fundamental to the claim for benefits.
(Maranian v. Workers’ Comp. Appeals Bd. (2000) 81 Cal. App. 4th 1068, 1070,
1075 [97 Cal. Rptr. 2d 418, 65 Cal. Comp. Cases 650].) Interlocutory procedural
or evidentiary decisions, entered in the midst of the workers’ compensation
proceedings, are not considered “final” orders. (Id. at p. 1075 [“interim orders,
which do not decide a threshold issue, such as intermediate procedural or
evidentiary decisions, are not ‘final’ “]; Rymer, supra, at p. 1180 [“[t]he term
[‘final’] 	does 	not 	include 	intermediate 	procedural 	orders 	or 	discovery
orders”]; Kramer, supra, at p. 45 [“[t]he term [‘final’] does not include
intermediate procedural orders”].) Such interlocutory decisions include, but are
not limited to, pre-trial orders regarding evidence, discovery, trial setting, venue,
or similar issues.
(Ledezma v. Kareem Cart Commissary and Mfg, (2024) 89 Cal.Comp.Cases 462, 475 (En Banc).)
Here, the order issued by the WCJ is a hybrid decision that included final findings on issues
of employment and insurance coverage. While these findings were not challenged, the inclusion
of final findings renders the decision a final order for purposes of reconsideration, and thus we
treat the petition as one seeking reconsideration.
Although we treat the petition as one seeking reconsideration, the petition only challenges
the non-final portion of the decision. In this case, we apply the standard for 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, § 10955(a); see also Cortez, supra; Kleemann, supra.) A petitioner must
also 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, and for the reasons discussed below, the decision of the WCJ is not supported by an
adequate record and omits discussion of whether good cause existed to permit a replacement panel.
Accordingly, we find that the decision rises to the level of substantial prejudice, which warrants a
grant of removal.

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III.
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.)
Here, the parties provided no exhibits. No testimony exists in the record. The matter
proceeded to trial essentially upon a single stipulation of the parties, which is that the psychiatric
QME will only conduct an examination remotely. (Minutes of Hearing and Summary of Evidence,
June 24, 2025, p. 2, lines 17-18.) Absent that single stipulation, no record exists. If the relevant
facts of this case are not in dispute, the parties should stipulate such facts. Absent a stipulation,
evidence must be put into the record to support any findings that may issue.
As to the underlying legal issue, the WCJ ordered a replacement evaluator because the
parties did not agree to a telehealth evaluation pursuant to AD Rule 46.3(a)(2), which states:
2) A QME or AME may complete a medical-legal evaluation through remote health
when a hands on physical examination is not necessary and all of the following
conditions are met:
(A) There is a medical issue in dispute which involves whether or not the injury is
AOE/COE (Arising Out of Employment / Course of Employment), or the physician
is asked to address the termination of an injured worker’s indemnity benefit
payments or address a dispute regarding work restrictions; and
(B) There is agreement in writing to the remote health evaluation by the injured
worker, the carrier or employer, and the QME.
(C) The remote health evaluation conducted by means of a virtual meeting is
consistent with appropriate and ethical medical practices and the AMA Guides 5th
edition, as determined by the QME and the relevant medical licensing board; and

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(D) The QME attests in writing that the evaluation does not require an in person
physical exam.
(Cal. Code Regs., tit. 8, § 46.3(a)(2), emphasis added.)
As defined by the Labor Code, “‘Shall’ is mandatory and ‘may’ is permissive.” (Lab. Code,
§ 15.) The phrasing of AD Rule 46.3 explains a permissive scenario where the QME may complete
an examination by telehealth. The rule does not use exclusionary language, such as “may only”
and we do not read such language into the rule.
Other examples of use of telehealth are permitted, for example, where a QME uses
telehealth pursuant to a reasonable accommodation exception granted by the Administrative
Director pursuant to the Americans with Disabilities Act. At a minimum, where a party is seeking
to strike a QME due to the use of telehealth, there should be evidence that the use of telehealth is
not otherwise due to a reasonable accommodation of disability.
In a recent en banc opinion, the Appeals Board expressed the principle that absent an
expressed provision in the Labor Code commanding the replacement of a QME, a party seeking
to strike a QME must establish good cause. (See Vazquez v. Inocensio Renteria, (2025) 90
Cal.Comp.Cases 514 (Appeals Board, en banc).) Here, we can find no expressed provision of the
Labor Code precluding a QME examination from proceeding virtually. Thus, the party objecting
must show good cause as to why the QME should be replaced.
Whether good cause exists will depend upon the individual facts of each case. Some factors
the parties may wish to consider include the following:
1) 	Whether the QME feels capable of completing the examination remotely.
2) 	Whether reasonable accommodations have been granted to permit a remote
evaluation.
3) 	The nature of the disputed issue.
4) 	Whether the examination is the initial examination or a supplemental evaluation.
5) 	Whether the parties can access the necessary technology and use it.
6) 	Whether the QME’s use of remote examination results in a violation of statute or
other regulation, for example, if the QME were using remote examination as a means of
obfuscating the office location requirements of AD Rule 26 and/or Labor Code section
139.2(h)(3)(C), that may warrant a replacement QME.
7) 	Any other case specific facts that may warrant an in-person or remote evaluation.

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Here, the parties created no record outside the fact that the QME will only conduct
appointments through telehealth. Accordingly, we cannot decide whether good cause exists in this
case and we return the matter to the trial level for further proceedings.
Accordingly, we grant applicant’s petition for reconsideration and as our Decision After
Reconsideration, we rescind the August 29, 2025 F&O and return this matter to the trial level for
further proceedings.
For the foregoing reasons,
IT IS ORDERED that applicant’s petition for reconsideration of the Findings and Orders
issued on August 29, 2025, by the WCJ is GRANTED.
IT IS FURTHER ORDERED as the Decision After Reconsideration of the Workers’
Compensation Appeals Board that the Findings and Orders issued on August 29, 2025, by the WCJ
is RESCINDED.

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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/ ANNE SCHMITZ, DEPUTY COMMISSIONER
I CONCUR,
/s/ CRAIG L. SNELLINGS, COMMISSIONER
/s/ JOSÉ H. RAZO, COMMISSIONER
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
NOVEMBER 10, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
ANDREA CASTANEDA
GHITTERMAN, GHITTERMAN & FELD
MULLEN & FILIPPI, LLP
EDL/mc
I certify that I affixed the official seal of
the Workers’ Compensation Appeals
Board to this original decision on this date.
CS