Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, §§ 5900(a), 5902, 5903
A petition for reconsideration may properly be taken only from a "final" order, decision, or award.
The WCJ's decision was not a final order as it did not determine substantive rights or a threshold issue, so the petition for reconsideration was dismissed.
From the decision · page 1A petition for reconsideration may properly be taken only from a "final" order, decision,
or award. (Lab. Code, § 5900(a), 5902, 5903.) 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.
Cal. Code Regs., tit. 8, § 10955(a)
The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted.
The petitioner did not demonstrate substantial prejudice or irreparable harm, so the petition for removal was denied.
From the decision · page 2We will also deny the petition to the extent it seeks removal. Removal 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 substantial 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, for the reasons stated in the WCJ's report, we are not persuaded that substantial prejudice or
irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate
remedy if the matter ultimately proceeds to a final decision adverse to petitioner.
Lab. Code, § 5813; Cal. Code Regs., tit. 8, §§ 10421, 10759, 10787, 10803
A willful failure to comply with an order could subject the offending party to sanctions.
The parties were reminded that failure to comply with orders could lead to sanctions, but the issue of sanctions was deferred to the trial in the case in chief.
From the decision · page 3prescribed and approved by the Appeals Board and shall be served
on the parties.
(Cal. Code Regs., tit. 8, § 10759(b), (e) (amended as of January 1,
2022.)
Here a WCJ issued an order at the May 3, 2022 mandatory settlement conference, which
states that: "Parties are to file PTCS in 20 days." The matter was then set for trial on June 27,
2022, before a different WCJ. The parties appeared, but due to ongoing settlement negotiations,
trial was continued to August 24, 2022. Yet, when the parties appeared on August 24, 2022,
applicant had not yet participated in preparing the PTCS.
All parties are expected to comply with orders by a WCJ and by the Appeals Board, and if
they are unable to comply, they must seek the appropriate relief. Parties are reminded that a willful
failure to comply with an order could subject the offending party to sanctions. (Lab. Code, § 5813;
Cal. Code Regs., tit. 8, § 10421.) With respect to the notice of intention issued by the WCJ on
August 30, 2022, the issue of sanctions may properly be heard at the time of trial in the case in
chief, and a record can be created. (See Hamilton v. Lockheed Corporation (Hamilton) (2001) 66
Cal.Comp.Cases 473, 476 (Appeals Board en banc) [decisions of the Appeals Board "must be
based on admitted evidence in the record"]; Cal. Code Regs., tit. 8, § 10787, 10803.)