ADJ11109473 — California WCAB decision

What the panel ordered

The WCAB dismissed the Petition for Reconsideration and granted the Petition for Removal, rescinding the WCJ's May 6, 2021 Minute Order and returning the matter to the trial level for further proceedings.

Defendant filed a Petition to Dismiss Inactive Case, which the WCJ denied by Minute Order on May 6, 2021. Defendant then filed a Petition for Reconsideration of that Order, which was considered by the WCAB panel.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Reconsideration / removalDefendant prevailed

The WCAB found the order denying the Petition to Dismiss Inactive Case was interlocutory and not a final order, thus the Petition for Reconsideration was improper and dismissed.

From the decision · page 2A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.)2 A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The Minute Order denying the Petition to Dismiss Inactive Case was interlocutory and did not decide any substantive right or threshold issue.

Favours Defendant prevailed

Because it was not a final order, the Petition for Reconsideration was improper and dismissed.

From the decision · page 2A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.)2 A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p.

The Petition for Reconsideration was not verified as required by Labor Code section 5902.

Favours Defendant prevailed

This procedural defect led to dismissal of the Petition for Reconsideration and a warning to defendant about future filings.

From the decision · page 3II. The WCJ in her Report states that defendant's Petition should be denied because it was not verified by defendant, nor was the proof of service signed by defendant's staff. Section 5902 requires that a petition for reconsideration be verified. (Lab. Code, § 5902; see also Cal. Code Regs., tit. 8, former § 10450(e), now § 10510(d) (eff. Jan. 1, 2020); Lucena v. Diablo Auto Body (2000) 65 Cal.Comp.Cases 1425 (Significant Panel Decision) [where a petition for reconsideration is not verified as required by section 5902, the petition may be dismissed if the petitioner has been given notice of the defect (either by the WCJ's report or by the respondent's answer) unless, within a reasonable time, the petitioner either: (1) cures the defect by filing a verification; or (2) files an explanation that establishes a compelling reason for the lack of verification and the record establishes that the respondents are not prejudiced by the lack of verification].) Defendant's Petition is being dismissed to the extent it seeks reconsideration per the discussion above. Defendant is warned that failure to verify a petition in the future may subject its pleading to summary dismissal or denial per WCAB Rule 10510(d).

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, §§ 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068

A petition for reconsideration may only be taken from a final order, decision, or award.

The WCAB applied this standard to determine that the Minute Order denying the Petition to Dismiss Inactive Case was interlocutory and not final, thus the Petition for Reconsideration was improper.

From the decision · page 2A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.)2 A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p.

Lab. Code, § 5902; Cal. Code Regs., tit. 8, former § 10450(e), now § 10510(d); Lucena v. Diablo Auto Body (2000) 65 Cal.Comp.Cases 1425 (Significant Panel Decision)

A petition for reconsideration must be verified as required by law.

The WCAB applied this standard to dismiss the Petition for Reconsideration because it was not verified and warned defendant about future compliance.

From the decision · page 3II. The WCJ in her Report states that defendant's Petition should be denied because it was not verified by defendant, nor was the proof of service signed by defendant's staff. Section 5902 requires that a petition for reconsideration be verified. (Lab. Code, § 5902; see also Cal. Code Regs., tit. 8, former § 10450(e), now § 10510(d) (eff. Jan. 1, 2020); Lucena v. Diablo Auto Body (2000) 65 Cal.Comp.Cases 1425 (Significant Panel Decision) [where a petition for reconsideration is not verified as required by section 5902, the petition may be dismissed if the petitioner has been given notice of the defect (either by the WCJ's report or by the respondent's answer) unless, within a reasonable time, the petitioner either: (1) cures the defect by filing a verification; or (2) files an explanation that establishes a compelling reason for the lack of verification and the record establishes that the respondents are not prejudiced by the lack of verification].) Defendant's Petition is being dismissed to the extent it seeks reconsideration per the discussion above. Defendant is warned that failure to verify a petition in the future may subject its pleading to summary dismissal or denial per WCAB Rule 10510(d).

ADJ11109473 · July 22, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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