A Judge May Test Adequacy, Not Compel It: The Board’s Gaines En Banc
July 17, 2026
What employers, carriers, and administrators should take from the Board’s new guidance on Orders Suspending Action and what the parties must file to obtain approval of a Compromise and Release.
The WCAB has issued a rare En Banc decision in the case of Calvin Gaines, et.al. v. ABME Aviation, Inc. providing new guidance on Orders Suspending Action and what the parties must file to obtain approval of a settlement agreement.
Before approving a settlement, the WCJ must find the settlement adequate to protect both the injured worker and the public interest. On 06/24/2026 the Board issued an en banc decision, binding on all panels and judges, that draws a clear line between testing a settlement and dictating its terms.
The decision by the WCAB consolidated two dozen settlements which were suspended by a single Van Nuys Workers’ Compensation Judge (WCJ). Rather than flag minor corrections or requesting further information, the WCJ issued Orders Suspending Action (OSA) that “ordered” the parties to obtain medical evaluations, the applicants to dismiss their claims “with prejudice” if they would not, and the applicant’s attorney to justify their fees, all without notice or hearing. Several of her reports described applicants as exploiting a “free cash money handout system,” and argued that if applicants were not willing to submit to “even one medical examination” then “the person likely is not injured at all.”
The en banc WCAB held that an OSA cannot be used to compel medical evaluations or dismissal of a case; where additional information is required by the judge to determine the adequacy of a settlement, the WCAB held that the proper recourse is to set the matter for an evidentiary hearing where a record can be created. Ultimately, the WCAB ruled that parties keep their right to due process in the settlement approval process, which includes notice and a meaningful chance to be heard. The Board rescinded every order and returned the cases for further development of the record where necessary. The WCAB disqualified the WCJ from the consolidated matters on the grounds that she had “expressed unqualified opinions” indicating bias. They further admonished the judge against seeking to prevent defendants from “overpaying claims,” and reminded the WCJ of their ethical obligations to avoid the appearance of impropriety.
This determination comes with a compliance message for Defendants: parties must file all relevant medical reports with a settlement. The Board stated in no uncertain terms that parties may not withhold those records or misrepresent that none exist. At the same time, the Board confirmed that substantial medical evidence is not required to approve a stipulated settlement. Adequacy review asks only whether the record holds enough information to assess the parties’ agreement.
This reinforces rather than changes our practical path towards approval of settlements early in litigation including: filing relevant medical reporting (if any) and providing information to the Judge discussing the basis for settlement while resisting the urge to paper a settlement with a bare “buy our peace” letter. With the necessary documents in hand, the WCJ has what the Board requires to approve the settlement agreement, without an Order Suspending Action or a further conferences.
Written By:
Devin A. Goodman, Esq., of our LFLM-Oakland Office
Laughlin, Falbo, Levy & Moresi, LLP.