Nicole Schilder (spouse), Isabel Marsau (daughter), and Charles Marsau (son), filed death benefits claims alleging that Donald Marsau died as a result of the repetitive and cumulative stress of his employment with Stander Reubens Thomas Kinsey, insured by defendant Valley Forge Insurance, administered by CNA Claims Plus. The two applications were filed at the Sacramento District office of the WCAB.
The employer is a workers’ compensation defense law firm. Before he died, Donald Marsau was a Certified Workers’ Compensation Law Specialist at Stander Reubens Thomas Kinsey. He practiced workers’ compensation defense principally in the Sacramento area until his death on December 4, 2021.
On February 23, 2022, defendant filed its Petition for Disqualification and Request to Transfer Venue Based on Disqualification of Judges. The Petition asked to disqualify all of the WCJs at the Sacramento and Stockton District Offices. And also requested a change of venue to a district office other than the Sacramento and Stockton District Offices.
A Report on Petition for Disqualification from the Presiding Sacramento workers’ compensation administrative law Judge recommended that the Petition for Disqualification be denied or dismissed.
A WCAB panel considered the allegations in the Petition, and the contents of the Report. Based on its review of the record, and for the reasons discussed below, it denied the Petition and returned the matter to the WCJ for further proceedings as appropriate in the case of Nicole Schilder (Donald Marsau Deceased) v Stander Reubens Thomas Kinsey – ADJ15708296 (October 2022).
Labor Code section 5311 specifically states that a party may object “to a particular workers’ compensation judge” being assigned to the case at issue. (Lab. Code, § 5311.) There is no statutory or case law that allows the disqualification of multiple WCJs by a party filing a single petition to disqualify.
The Appeals Board has previously held that parties may not seek “blanket” disqualifications, and that disqualifications must be sought on a case-by-case basis. (Robbins v. Sharp Healthcare (2006) 71 Cal.Comp.Cases 1291, 2006 Cal.Wrk.Comp. LEXIS 314 (Appeals Board significant panel).)
Further, although a petition for disqualification of a WCJ is to be determined by the Appeals Board, a petition for change of venue will initially be addressed by the Presiding WCJ at the district office where the petition is filed, and subsequently an aggrieved part may seek review by the Appeals Board. Thus the “Request to Transfer Venue” was not properly before the WCAB panel and was therefore not addressed at this time.
Thus the panel did not address the merits of the disqualification or removal. However, upon return of this matter to the trial level, if defendant seeks a change of venue from the Sacrament District Office, that issue would need to be submitted to the Sacramento Presiding WCJ. Once the proper venue has been determined and the matter has been assigned to a WCJ, defendant may seek disqualification if appropriate.
The panel also said that “It is also important to note that a party’s “unilateral” and/or “subjective” perception of an appearance of bias does not constitute a factual or legal basis for disqualification of a WCJ. (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1034 [119 Cal. Rptr. 2d 341] Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal. 3d 781 [171 Cal. Rptr. 590].)”