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Court of Appeal, First District, Division 2, California.

GREYHOUND LINES, INC., Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, (Floyd D. Plunkett, Injured Party), Respondents.

No. AO23656.

Decided: May 14, 1984

Michael James Moriarty, San Francisco, for petitioner. Frank J. Reilly, Neyhart, Anderson, Nussbaum, Reilly & Freitas, San Francisco, for respondents.

Greyhound Lines, Inc. (Greyhound) seeks review of a board decision in which Greyhound was found to have violated Labor Code section 132a 1 by its discriminatory removal of Floyd Plunkett (claimant) from service as a bus driver.   Greyhound contends not only that the board's decision was erroneous on the merits, but that the board erred in denying Greyhound's petition for reassignment of the matter to another workers' compensation judge in accordance with a provision of the board's Rules of Practice and Procedure.   As we agree with this latter contention, and annul the board's order and remand the case for that reason, we do not think it necessary to address Greyhound's claim as to the merits.


In 1979 claimant filed three applications for benefits, alleging specific industrial injuries to his neck suffered in 1972 and 1975, and a cumulative neck injury suffered over the course of his employment with Greyhound from 1961 to 1979.   The cases were consolidated for hearing and decision before Workers' Compensation Judge Alfred Williams.   In 1980 claimant was granted an award of permanent disability benefits of $13,912.50, based on a finding of 43 percent permanent disability.   The board denied reconsideration and this court summarily denied Greyhound's petition for review of that decision, as did the Supreme Court.

In December 1980, under the authority of section 5410,2 claimant instituted proceedings to prove that the original injuries caused a new and further disability.   On October 1, 1981, the board served upon the parties a notice of hearing on that petition, designating December 14, 1981, as a hearing date and Judge Williams as the assigned judge.   On October 9, and pursuant to board rule 10453 (set forth infra, at fn. 6), Greyhound filed a petition, with supporting declaration, “for automatic reassignment of regular hearing to another workers' compensation judge.”   Judge Williams, acting in his capacity as presiding judge of the regional office of the board, issued an order denying the petition on the ground that he “had been previously assigned to the above-entitled matter without objection.”

After some continuances, a new notice of the same hearing was served on March 12, 1982, again designating Judge Williams.   On March 22 Greyhound filed a substantially identical petition for reassignment, and on March 23 Judge Williams filed a substantially identical order of denial.   All subsequent proceedings in this case were heard and decided by Judge Williams.

On April 19, 1982, claimant's petition to reopen on the grounds of new and further disability was settled by a stipulated award and adjustment of the original rating.   At about the same time as this settlement, claimant filed his petition for relief under section 132a, asserting that his removal as a driver was discriminatory and unlawful within the meaning of that statute.   The hearing on this issue was also assigned to Judge Williams and Greyhound did not in this instance seek a reassignment under rule 10453.


 At the time it denied Greyhound's petition for reconsideration on the issue of reassignment, the board relied upon Labor Code section 5700.3  The board also stated that “it has been the policy and custom of the [board] that following an adjournment, a matter should be reset and decided by the same judge who previously heard it.” 4  Before this court, however, the board relies not on section 5700, but Labor Code section 5311, which permits a party to object to a particular referee for cause.5  The claimant essentially adopts and expands upon the two arguments that, at different stages of this case, have been relied upon by the board.

The contentions of the board and claimant may be summarized as follows:  First, that the hearing to prove a new and further disability was really no more than an extension of the original proceeding conducted by Judge Williams, and by failing to object to the original assignment of that judge Greyhound waived its right to object later.   Second, since Greyhound possessed a basis upon which to seek reassignment “for cause,” a petition for reassignment on that ground provided the exclusive remedy.   We reject both arguments.


The second contention, upon which the board now primarily relies, may be disposed of by analyzing rule 10453,6 which was the basis of Greyhound's petition to have the hearing reassigned to another judge.

The language of rule 10453 does not indicate that it is available only in instances in which the petitioning party has no arguable grounds for a challenge for cause.   On the contrary, the substance of the affidavit or declaration under penalty of perjury prescribed in the rule renders it unnecessary to specify any grounds for the reassignment except the belief of the affiant or declarant that the assigned judge cannot provide a “fair” or “expeditious” or “inexpensive” or “unencumbered” or “impartial” trial.   On the other hand, the immediately preceding provision, rule 10452, which implements Labor Code section 5311, does provide a mechanism for challenging a workers' compensation judge for cause.7  Rules 10452 and 10453 are, and clearly seem to have been intended to be, the functional equivalents of sections 170 and 170.6 of the Code of Civil Procedure, which also provide, respectively, for challenges “for cause” and for automatic challenges upon submission of a declaration of belief set forth in the form of an affidavit.  Section 170.6 “permits a party, by a simple charge supported by a formal affidavit, to disqualify a judge ․ deemed prejudiced.”  (1 Witkin, Cal. Procedure (2d ed. 1970), Courts § 95, p. 367, italics added.)  “[F]or the limited purposes of section 170.6, prejudice may be established by the filing of an affidavit ․, without judicial determination of the existence of the fact.”  (Johnson v. Superior Court (1958) 50 Cal.2d 693, 697, 329 P.2d 5, italics added.)   In short, pursuant to section 170.6, the party seeking disqualification need neither prove nor even allege the “cause” of his or her belief of bias or prejudice.   There is no suggestion whatsoever in the case law or elsewhere that the right of a party to invoke Code of Civil Procedure section 170.6 is conditioned on the absence of specific grounds for a challenge to disqualify a judge for cause pursuant to Code of Civil Procedure section 170.8  Similarly, as previously noted, there is not the least suggestion in rule 10453 that it may not be invoked by a party who has or who may have grounds for objecting to a workers' compensation judge or referee for cause pursuant to section 5311.9

The board's interpretation of rule 10453 is impossible to sustain because under that interpretation the critical factor is not the belief of the party seeking reassignment, as provided in the rule, but the belief of the board.   That is, the right of a party to obtain automatic reassignment is effectively conditioned on the board's belief as to whether the party's declaration is founded on good cause.   Moreover, the party seeking reassignment may be placed in the wholly untenable position of having to persuade the board that his or her belief that the assigned judge is biased or prejudiced is not based on good cause.   This cannot be.

As stated by Chief Justice Gibson, with respect to Code of Civil Procedure section 170.6, “[i]t is important, of course, not only that the integrity and fairness of the judiciary be maintained, but also that the business of the courts be conducted in such a manner as will avoid suspicion of unfairness.   [Citations.]  Prejudice, being a state of mind, is very difficult to prove, and, when a judge asserts that he is unbiased, courts are naturally reluctant to determine that he is prejudiced.   In order to insure confidence in the judiciary and avoid the suspicion which might arise from the belief of a litigant that the judge is biased in a case where it may be difficult or impossible for the litigant to persuade a court that his belief is justified, the Legislature could reasonably conclude that a party should have an opportunity to obtain the disqualification of a judge for prejudice, upon a sworn statement, without being required to establish it as a fact to the satisfaction of a judicial body.”  (Johnson v. Superior Court, supra, 50 Cal.2d at p. 697, 329 P.2d 5.)   Considering the similarity of the terms and purposes of Code of Civil Procedure section 170.6 and rule 10453, the foregoing analysis has as much application to the trial of a workers' compensation case as to any civil or criminal proceeding in a municipal or superior court.


The board's and claimant's remaining argument, which is based on Labor Code section 5700, is also unpersuasive.  Section 5700 (which is set forth in footnote 3, supra) speaks to hearings previously adjourned and continued for further proceedings.   The section simply provides that a hearing “shall be concluded and the decision made by the referee who previously heard it.”   That is, a hearing commenced before a particular judge may be adjourned and continued but must be concluded by that judge, who alone may decide the issue or issues there presented.   However, the proceeding instituted by claimant in December of 1980 was not a continuation of the original proceedings, which had been finally concluded.   It was a new and separate proceeding based on a different statute (§ 5410) and new facts.   Insofar as section 5700 is relevant at all, claimant's original consolidated petitions for workers' compensation benefits, his petition to reopen, and his petition for relief under section 132a were each separate “application[s]” within the meaning of section 5700.   The hearings on the subsequent applications seem to us, at most, the sort of “supplemental proceedings” which, pursuant to board rule 10346 (set forth in footnote 4, supra), are not required to be assigned to the workers' compensation judge who heard the original proceedings.

Moreover, it is the portion of rule 10453 that most differs from Code of Civil Procedure section 170.6 that most clearly defeats the board's position.   Code of Civil Procedure section 170.6, which pertains to “action[s] or special proceeding[s] of any kind or character,” generally requires that a motion be made in advance of the hearing or trial and provides for the assignment of a different judge “to try the cause or hear the matter.”   On the other hand, rule 10453 applies to any “regular hearing,” and provides for the reassignment of a different judge to “the case or proceeding.”   The reference in the rule to any “regular hearing” is less consistent with the board's waiver analysis than the corresponding but different language of section 170.6.   In other words, any doubt as to whether claimant's subsequent petition to reopen was an aspect of or distinct from the original proceedings is unimportant in light of the absence of doubt that, in any event, the subsequent petition necessitated a new and different “regular hearing.”10

 Claimant points out that though Greyhound sought reassignment of the “regular hearing” under rule 10453 in connection with the petition to reopen under section 5410, it neglected to do so at the regular hearing on claimant's petition for relief under section 132a, which is the only substantive issue now before us.   We conclude, however, that no such action was necessary to protect Greyhound's rights.   It is the “case or proceeding” which must be reassigned upon motion under rule 10453, not simply the “regular hearing” at or with respect to which the reassignment was sought.   The phrase “case or proceeding” appears to be a conscious parallel to the phrase “cause or ․ matter” that appears in Code of Civil Procedure section 170.6.   It is well established, with respect to the latter statute, that the erroneous denial of a motion to reassign the case operates to invalidate all subsequent judicial acts by the judge who denied the motion.  (See, e.g., Solberg v. Superior Court, supra, 19 Cal.3d 182, 190, 137 Cal.Rptr. 460, 561 P.2d 1148;  McCartney v. Comm. on Judicial Qualifications (1974) 12 Cal.3d 512, 531–532, 116 Cal.Rptr. 260, 526 P.2d 268;  Brown v. Superior Court (1981) 124 Cal.App.3d 1059, 1061, 177 Cal.Rptr. 756;  In re Jose S. (1978) 78 Cal.App.3d 619, 628, 144 Cal.Rptr. 309.)   By analogy, the same rule should apply to the erroneous denial of a petition under rule 10453.

As the instant case demonstrates, it is not uncommon for a single worker's compensation case to involve a series of discrete proceedings, each with its own separate regular hearing.   To permit a judge once removed under rule 10453 to later be reassigned to another regular hearing on a different issue in what may still properly be regarded as the same case would tend to diminish if not extinguish the right established by the rule.

 In any event, those who drafted rule 10453 and made the setting of a “regular hearing” the occasion for assertion of the right established by the rule could have made the relief applicable only to that “regular hearing.”   They chose instead to extend the relief to the entire “case or proceeding.”   We are satisfied that by this choice the drafters intended that once removed from a case a workers' compensation judge could not thereafter validly participate in any subsequent hearing in that case.   This result is also conceptually consistent with the provisions of section 5700 (which requires that the continuation of a previously adjourned hearing “shall be concluded and the decision made by the referee who previously heard it”) and rule 10346 (which provides that “[t]o the extent practicable and fair, supplemental proceedings shall be assigned to the workers' compensation judge who heard the original proceedings”).

The findings of fact and award of March 28, 1983, is annulled and the cause remanded for proceedings in accordance with the views set forth herein.


1.   Section 132a provides that it is unlawful for employers to discriminate against industrially injured employees.   The statute was interpreted and thoroughly discussed in Judson Steel Corp. v. W.C.A.B. (1978) 22 Cal.3d 658, 150 Cal.Rptr. 250, 586 P.2d 564.

2.   Section 5410 provides in its entirety as follows:  “Nothing in this chapter shall bar the right of any injured employee to institute proceedings for the collection of compensation within five years after the date of the injury upon the ground that the original injury has caused new and further disability or the need for vocational rehabilitation benefits.   The jurisdiction of the appeals board in these cases shall be a continuing jurisdiction at all times within this period.   This section does not extend the limitation provided in Section 5407.”

3.   As pertinent, section 5700 provides that:  “The hearing on the application may be adjourned from time to time and from place to place in the discretion of the appeals board or a referee holding the hearing.   Any such hearing adjourned by a referee shall be continued to be heard by and shall be concluded and the decision made by the referee who previously heard it․”

4.   The phrase “policy and custom” presumably refers to board rule 10346, which in relevant part provides that:  “The presiding workers' compensation judge ․ may ․ reassign ․ cases if no oral testimony has been received therein, or if the requirements of Labor Code Section 5700 have been waived.   To the extent practicable and fair, supplemental proceedings shall be assigned to the workers' compensation judge who heard the original proceedings.”  (Italics added.)

5.   Section 5311 provides that:  “Any party to the proceeding may object to the reference of the proceeding to a particular referee upon any one or more of the grounds specified in Section 641 of the Code of Civil Procedure and such objection shall be heard and disposed of by the appeals board.   Affidavits may be read and witnesses examined as to such objections.”   The grounds specified in section 641 of the Code of Civil Procedure are set forth, infra, at footnote 9.

6.   Rule 10453 (Cal.Admin.Code, tit. 8, § 10453) provides:The injured worker (or the dependent or dependents of a deceased worker) and defendants shall be entitled to reassignment of a regular hearing to another workers' compensation judge in accordance with the provisions of this section.   Proceedings for such reassignment shall be instituted by the filing of a petition supported by an affidavit or declaration under penalty of perjury in substantially the following form:State of California)) ss.  County of ․)_, [being duly sworn, deposes and says:] [declares under penalty of perjury:]  That [s]he is [a party] [attorney for a party] to the above-numbered case.   That affiant believes that [s]he cannot have a [fair] [expeditious] [inexpensive] [unencumbered] [impartial] trial before the workers' compensation judge [before whom the case is pending] [to whom the case is assigned].  [Subscribed and sworn to before me this_day of _, 19_]              _             (Notary public or other officer                  administering oath)If the workers' compensation judge assigned to hear the matter is known, the petition and affidavit or declaration shall be filed not more than five (5) days after the service of the notice of regular hearing and be directed to the attention of the presiding workers' compensation judge.If a case is assigned for Regular Hearing at a Conference Hearing, including Conference Pre-Trial, Rating Pre-Trial or Standby Calendar, a party may exercise the right to automatic reassignment by making an oral motion in lieu of the written motion required by this section.   The oral motion shall be made on the record immediately upon learning the name of the judge to whom the case has been assigned for Regular Hearing, and shall be acted upon immediately by the presiding workers' compensation judge of the office in which the case is to be heard.   In the event the presiding workers' compensation judge is unavailable, any workers' compensation judge authorized by the presiding workers' compensation judge may rule upon the motion.A motion for reassignment made orally under this section need not be accompanied or supported by the affidavit or declaration under penalty of perjury prescribed by this section.In no event shall any motion or petition for reassignment be entertained after the swearing of the first witness at a Regular Hearing.Upon the filing of a petition for reassignment in accordance with the provisions of this section, without any further act or proof, the presiding workers' compensation judge shall assign the case or proceeding to another workers' compensation judge.   If no other workers' compensation judge is available in the office, such assignment shall be made by a deputy commissioner of the Appeals Board.   Upon reassignment a new notice of Regular Hearing shall be served.   Under no circumstances shall more than one such reassignment be made in any one case or proceeding provided, however, that one additional reassignment may be made upon petition of a party on the other side.   Such petition by the other party shall be filed in the manner and time hereinabove provided.Unless required for the convenience of the Workers' Compensation Appeals Board, no continuance shall be granted by reason of a petition filed under this section.   If a continuance is granted, another Regular Hearing shall be scheduled as early as possible.Consolidated cases are to be considered as one case within the meaning of this section.   This section is not applicable to conference hearings.(Italics added.)Rule 10301, subdivision (m), provides:(m) “Regular Hearing” means a proceeding set for the purpose of receiving evidence.

7.   Rule 10452 provides in its entirety as follows:  “Proceedings to disqualify a workers' compensation judge under Labor Code Section 5311 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 grounds for disqualification of the workers' compensation judge to whom a case or proceeding has been assigned.  [¶] 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.   In no event shall any such petition be allowed after the swearing of the first witness.  [¶] A petition for disqualification shall be referred to and determined by a panel of three commissioners of the Appeals Board in the same manner as a petition for reconsideration.”

8.   It is plain that by their express terms the two statutes provide alternative methods for disqualifying a judge thought to be biased.   Section 170.6, like section 170, provides a mechanism for establishing “that [the] judge or court commissioner is prejudiced against any party or attorney [etc.] ․”  (§ 170.6, subd. (1), italics added.)   The Supreme Court has stated that “[t]he word ‘prejudice’ in section 170.6 is to be given the same meaning as it has in [section 170, subd. (5) ] ․”  (Solberg v. Superior Court (1977) 19 Cal.3d 182, 192 (fn. 9), 137 Cal.Rptr. 460, 561 P.2d 1148.)  Section 170.6 is expressly made “cumulative”.  (See section 170.6, subd. (7).)  Numerous cases have stated or at least very strongly implied that section 170.6 furnishes an alternative method of challenge for the party who has, or believes he has, grounds to challenge the judge for cause.  (See, e.g., Pappa v. Superior Court (1960) 54 Cal.2d 350, 354, 5 Cal.Rptr. 703, 353 P.2d 311;  Mezzetti v. Superior Court (1979) 94 Cal.App.3d 987, 989, 156 Cal.Rptr. 802;  People v. Barger (1974) 40 Cal.App.3d 662, 669–670, 115 Cal.Rptr. 298;  Haldane v. Superior Court (1963) 221 Cal.App.2d 483, 485, 34 Cal.Rptr. 572.)   As stated in Pappa, supra, “If for some reason a party does not desire to assume the burden of establishing that he comes within [section 170.6], he may pursue the alternative procedure under section 170 of alleging and proving the facts upon which he relies to establish prejudice.”  (54 Cal.2d at p. 354, 5 Cal.Rptr. 703, 353 P.2d 311.)

9.   The causes referred to in section 5311 are those specified in Code of Civil Procedure section 641, which are as follows:  “1. A want of any of the qualifications prescribed by statute to render a person competent as a juror;  [¶] 2. Consanguinity or affinity, within the third degree, to either party, or to an officer of a corporation which is a party, or to any judge of the court in which the appointment shall be made;  [¶] 3. Standing in the relation of guardian and ward, conservator and conservatee, master and servant, employer and clerk, or principal and agent, to either party;  or being a member of the family of either party;  or a partner in business with either party;  or security on any bond or obligation for either party;  [¶] 4. Having served as a juror or been a witness on any trial between the same parties for the same cause of action;  [¶] 5. Interest on the part of such person in the event of the action, or in the main question involved in the action;  [¶] 6. Having formed or expressed an unqualified opinion or belief as to the merits of the action;  [¶] 7. The existence of a state of mind in such person evincing enmity against or bias to either party.”

10.   The board interprets rule 10453 as being available only upon the first hearing in any given “case or proceeding” (see Green v. WCAB (1980) 45 Cal.Comp. Cases 845), and urges that we adopt that interpretation.   We decline to do so because we do not believe language in the rule justifies the proffered construction.In its petition for reconsideration the board also contends that our disposition will have the effect of permitting parties to invoke rule 10453 repeatedly in the same “case or proceeding.”   This interpretation is likewise plainly incorrect.   By its terms rule 10453 is available only once “in any one case or proceeding” to each “side.”In both respects, this court is not authorized to re-write the rule.   That power resides with the board itself.  (Lab.Code, § 5307.)

KLINE, Presiding Justice.

ROUSE and SMITH, JJ., concur.