Ontiveros, Juan, Applicant v. PROGRESSION DRYWALL CORPORATION; CYPRESS INSURANCE, administered by BERKSHIRE HATHAWAY HOMESTATE COMPANIES, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
JUAN ONTIVEROS, Applicant
vs.
PROGRESSION DRYWALL CORPORATION; CYPRESS INSURANCE, administered
by BERKSHIRE HATHAWAY HOMESTATE COMPANIES, Defendants
Adjudication Number: ADJ19084557
Los Angeles District Office
OPINION AND ORDER
DENYING PETITION
FOR REMOVAL
Defendant has filed a petition for removal from the order taking the matter off calendar
issued on July 30, 2025, by the workers’ compensation administrative law judge (WCJ).
Defendant contends that a bifurcated trial should proceed upon its affirmative post-
termination defenses prior to completion of discovery.
We have not 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 and based upon the WCJ’s analysis of the merits
of petitioner’s arguments in the WCJ’s Report, we will deny removal.
To the extent that defendant’s petition appears to challenge the July 9, 2025 Order Vacating
and Setting Aside Order Setting this Matter for Trial, we do not address these arguments as the
petition is not timely with respect to that order.
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
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

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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, based upon the WCJ’s analysis of the
merits of petitioner’s arguments, we are not persuaded that substantial prejudice or irreparable
harm will result if removal is denied and/or that reconsideration will not be an adequate remedy if
the matter ultimately proceeds to a final decision adverse to petitioner.
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.)
In workers’ compensation, the general rule is that all matters are submitted at a single trial.
(Cal. Code Regs., tit. 8, § 10787(a).) However, it is within the discretion of a WCJ to bifurcate any
issue if good cause is presented. Here, and for the reasons discussed by the WCJ in the Report,
we agree that good cause was not presented to bifurcate the issue of defendant’s post-termination
defenses.
We would further note that multiple panels have recently cautioned defendant’s attorneys
against proceeding upon what appear to be frivolous arguments presented in various petitions for
removal. (See Henry v. Acco Engineered Systems, et. al., ADJ17195356, ADJ17201936, (Sept.
26, 2025); Koenig v. Hertz Corporation, et. al., ADJ17262639 (Sept. 29, 2025); Carrillo vs. Neal
Trucking, Inc., et. al., ADJ18395672, (Oct. 13, 2025); Gomez v. Garfield Beach CVS, et. al.,
ADJ17808664, (Oct. 22, 2025).)
Defendant wishes to litigate an affirmative defense to a finding of industrial injury, prior
to completion of discovery on the issue of injury. If defendant is confident in its defense, it may
simply stipulate that the injury is industrial and proceed to trial upon its affirmative defense. Absent
such stipulation, applicant has a due process right to complete discovery on the issue within a
reasonable time. Furthermore, as we have reminded defendant in multiple panels, it has an
equivalent duty to investigate. (Cal. Code Regs., tit. 8, § 10109.)
Accordingly, we deny removal.

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For the foregoing reasons,
IT IS ORDERED that defendant’s Petition for Removal from the order setting the matter
for trial issued on July 30, 2025, by the WCJ is DENIED.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ CRAIG L. SNELLINGS, COMMISSIONER
I CONCUR,
/s/ JOSÉ H. RAZO, COMMISSIONER
/s/ KATHERINE WILLIAMS DODD, COMMISSIONER
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
NOVEMBER 20, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
JUAN ONTIVEROS
LEE LEGAL LOS ANGELES
MICHAEL SULLIVAN & ASSOCIATES, LLP
EDL/mt
I certify that I affixed the official seal of
the Workers’ Compensation Appeals Board
to this original decision on this date.
KL