Barnett, Roberta, Applicant v. DEPARTMENT OF MOTOR VEHICLES, legally uninsured, administered by STATE COMPENSATION INSURANCE FUND, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
ROBERTA BARNETT, Applicant
vs.
DEPARTMENT OF MOTOR VEHICLES, legally uninsured,
administered by STATE COMPENSATION INSURANCE FUND, Defendants
Adjudication Number: ADJ10958736
Sacramento District Office
OPINION AND ORDER
DENYING PETITION
FOR DISQUALIFICATION
Applicant seeks disqualification of the workers’ compensation administrative law judge
(WCJ) based upon general allegations that the WCJ is biased.
We have not received an answer from defendant. 	The WCJ filed a Report and
Recommendation 	on 	Petition 	for 	Disqualification 	(Report) 	recommending 	that 	we 	deny
disqualification. Applicant filed a response to the WCJ’s Report, which we have accepted as a
supplemental petition. (Cal. Code Regs., tit. 8, § 10964.) In the future, applicant should request
permission to file supplemental petitions, pursuant to the rule.
We have considered the allegations of the Petition for Disqualification, the supplemental
petition, 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 contained in the WCJ’s Report, we will deny disqualification.
Labor Code1 section 5311 provides that a party may seek to disqualify a WCJ upon any
one or more of the grounds specified in Code of Civil Procedure section 641. (§ 5311; see also
Code Civ. Proc., § 641.) Among the grounds for disqualification under section 641 are that the
WCJ has “formed or expressed an unqualified opinion or belief as to the merits of the action”
(Code Civ. Proc., § 641(f)) or that the WCJ has demonstrated “[t]he existence of a state of mind
… evincing enmity against or bias toward either party.” (Code Civ. Proc., § 641(g)).
1 All future references are to the Labor Code unless noted.

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Under WCAB Rule 10960, proceedings to disqualify a WCJ “shall be initiated by the filing
of a petition for disqualification supported by an affidavit or declaration under penalty of perjury
stating in detail facts establishing one or more of the grounds for disqualification … .” (Cal. Code
Regs., tit. 8, § 10960, italics added.) It has long been recognized that “[t]he allegations in a
statement charging bias and prejudice of a judge must set forth specifically the facts on which the
charge is predicated,” that “[a] statement containing nothing but conclusions and setting forth no
facts constituting a ground for disqualification may be ignored,” and that “[w]here no facts are set
forth in the statement there is no issue of fact to be determined.” (Mackie v. Dyer (1957) 154
Cal.App.2d 395, 399.)
Next, petitions for disqualification must be timely filed: “If the workers' compensation
judge assigned to hear the matter and the grounds for disqualification are known, the petition for
disqualification shall be filed not more than 10 days after service of notice of hearing or after
grounds for disqualification are known.” (Cal. Code Regs., tit. 8, § 10960.)
Furthermore, even if detailed and verified allegations of fact have been made, it is settled
law that a WCJ is not subject to disqualification under section 641(f) if, prior to rendering a
decision, the WCJ expresses an opinion regarding a legal or factual issue but the petitioner fails to
show that this opinion is a fixed one that could not be changed upon the production of evidence
and the presentation of arguments at or after further hearing. (Taylor v. Industrial Acc. Com.
(Thomas) (1940) 38 Cal.App.2d 75, 79–80 [5 Cal.Comp.Cases 61].) Additionally, even if the WCJ
expresses an unqualified opinion on the merits, the WCJ is not subject to disqualification under
section 641(f) if that opinion is “based upon the evidence then before [the WCJ] and upon the
[WCJ's] conception of the law as applied to such evidence.” (Id.; cf. Kreling v. Superior Court
(1944) 25 Cal.2d 305, 312 [“It is [a judge’s] duty to consider and pass upon the evidence produced
before him, and when the evidence is in conflict, to resolve that conflict in favor of the party whose
evidence outweighs that of the opposing party.”].)
Also, it is “well settled … that the expressions of opinion uttered by a judge, in what he
conceives to be a discharge of his official duties, are not evidence of bias or prejudice” under
section 641(g) (Kreling, supra, 25 Cal.2d at pp. 310–311; accord: Mackie, supra, 154 Cal.App.2d
at p. 400) and that “[e]rroneous rulings against a litigant, even when numerous and continuous,
form no ground for a charge of bias or prejudice, especially when they are subject to review.”
(McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11; accord: Mackie, supra, 154 Cal.App.2d

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at p. 400 (emphasis added).) Similarly, “when the state of mind of the trial judge appears to be
adverse to one of the parties but is based upon actual observance of the witnesses and the evidence
given during the trial of an action, it does not amount to that prejudice against a litigant which
disqualifies” the judge under section 641(g). (Kreling, supra, 25 Cal.2d at p. 312; see also Moulton
Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219 [“When making a ruling, a
judge interprets the evidence, weighs credibility, and makes findings. In doing so, the judge
necessarily makes and expresses determinations in favor of and against parties. How could it be
otherwise? We will not hold that every statement a judge makes to explain his or her reasons for
ruling against a party constitutes evidence of judicial bias.”].)
Under no circumstances may a party’s unilateral and subjective perception of bias afford a
basis for disqualification. (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1034;
Robbins v. Sharp Healthcare (2006) 71 Cal.Comp.Cases 1291, 1310–1311 (Significant Panel
Decision).)
Here, and based upon the analysis contained in the WCJ’s Report we deny the Petition for
Disqualification.

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For the foregoing reasons,
IT IS ORDERED that applicant’s Petition for Disqualification of the WCJ filed on
October 17, 2025, is DENIED.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ JOSÉ H. RAZO, COMMISSIONER
I CONCUR,
/s/ CRAIG L. SNELLINGS, COMMISSIONER
/s/ JOSEPH V. CAPURRO, COMMISSIONER
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
DECEMBER 1, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
ROBERTA BARNETT
STATE COMPENSATION INSURANCE FUND
EDL/mt
I certify that I affixed the official seal of the
Workers’ Compensation Appeals Board to this
original decision on this date. 	CS