What the panel ordered
Reconsideration granted on Board motion to correct panel; prior decision rescinded; Petition for Reconsideration/Removal denied.
Petition for reconsideration/removal of a WCJ decision including a threshold issue; Board granted reconsideration on its own motion to correct panel composition and substituted a new decision.
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.
The WCJ's decision included a threshold issue, making it a final order subject to reconsideration, but the petition only challenged an interlocutory finding. The Board applied the removal standard and found no significant prejudice or irreparable harm, nor that reconsideration would be inadequate.
From the decision · page 2Here, the WCJ's decision includes a finding regarding a threshold issue. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ's decision included a finding regarding a threshold issue, making it a final order subject to reconsideration rather than removal.
Favours Defendant prevailed
Determined the procedural standard to apply to the petition.
From the decision · page 2Here, the WCJ's decision includes a finding regarding a threshold issue. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal.
Petitioner only challenged an interlocutory finding/order, not the threshold issue itself.
Favours Defendant prevailed
Led the Board to apply the removal standard rather than reconsideration standard.
From the decision · page 2Although the decision contains a finding that is final, the petitioner is only challenging an interlocutory finding/order in the decision. Therefore, we will apply the removal standard to our review. (See Gaona, supra.)
Petitioner did not show significant prejudice or irreparable harm, nor that reconsideration would be inadequate.
Favours Defendant prevailed
Board found no basis to grant removal; petition denied.
From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, based upon the WCJ's analysis of the merits of the petitioner's arguments, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, § 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274
Removal is an extraordinary remedy rarely exercised by the Appeals Board and will only be granted if the petitioner shows significant prejudice or irreparable harm, and that reconsideration will not be an adequate remedy.
Applied to deny removal because petitioner did not show significant prejudice or irreparable harm, nor that reconsideration would be inadequate.
From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, based upon the WCJ's analysis of the merits of the petitioner's arguments, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy.
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About this page
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