ADJ12158478 — California WCAB decision

What the panel ordered

Petition for Reconsideration/Removal is denied.

Petition for Reconsideration/Removal of a WCJ decision including a threshold issue; Board reviewed timeliness and merits per WCJ's report.

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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 petition was timely because service to a defense party outside California extended the time for all parties. However, the petition only challenged an interlocutory order, so the removal standard applied. The petitioner did not show significant prejudice or irreparable harm, nor that reconsideration would be inadequate.

From the decision · page 1Contrary to the WCJ, we find applicant's petition timely filed. There are 20 days allowed within which to file a petition for reconsideration from a "final" decision. (Lab. Code, § 5900(a), 5903.) This time is extended by 10 calendar days if service is made to an address outside of California but within the United States. (Cal. Code Regs., tit. 8, § 10605(a)(1).) While applicant and her attorney received service of the decision within California, defendant was served at an address outside of California. Accordingly, and to observe due process for all parties, we interpret Rule 10605 as extending the time to file for all parties being served.

The facts that decided it

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

Defendant was served at an address outside California, so the time to file for reconsideration was extended for all parties.

Favours Applicant prevailed

This made the applicant's petition timely, allowing the Board to reach the merits.

From the decision · page 1Contrary to the WCJ, we find applicant's petition timely filed. There are 20 days allowed within which to file a petition for reconsideration from a "final" decision. (Lab. Code, § 5900(a), 5903.) This time is extended by 10 calendar days if service is made to an address outside of California but within the United States. (Cal. Code Regs., tit. 8, § 10605(a)(1).) While applicant and her attorney received service of the decision within California, defendant was served at an address outside of California. Accordingly, and to observe due process for all parties, we interpret Rule 10605 as extending the time to file for all parties being served.

Petitioner only challenged an interlocutory order, not the threshold issue resolved by the WCJ.

Favours Defendant prevailed

This required 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

This led to denial of removal and thus denial of the petition.

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.

ADJ12158478 · April 29, 2022

What the panel ordered

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The facts that decided it

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