Lab. Code, 5904
Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal.
The WCJ's decision included a threshold issue making it a final decision subject to reconsideration.
From the decision · page 1If a decision includes resolution of a "threshold" issue, then it is a "final" decision, whether
or not all issues are resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr,
McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals
Board en banc).) Threshold issues include, but are not limited to, the following: injury arising out
of and in the course of employment, jurisdiction, the existence of an employment relationship and
statute of limitations issues. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd.
(Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) Failure to timely petition for
reconsideration of a final decision bars later challenge to the propriety of the decision before the
WCAB or court of appeal. (See Lab. Code, § 5904.) Alternatively, non-final decisions may later
be challenged by a petition for reconsideration once a final decision issues.
Cal. Code Regs., tit. 8, 10955(a)
The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted, and that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues.
The petitioner did not show significant prejudice or irreparable harm or that reconsideration would be inadequate, so removal was 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.