What the panel ordered
Petition for Reconsideration is dismissed and Petition for Removal is denied.
Defendant seeks reconsideration of the Opinion and Decision After Reconsideration issued by the Appeals Board on March 4, 2022, which granted applicant's Petition for Reconsideration and returned the matter to trial level for record development.
This docket was decided more than once. Shown here is the latest released decision; we also hold March 4, 2022.
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 prior Opinion was interlocutory and not a final order, thus the petition for reconsideration was dismissed; removal was denied as petitioner failed to show irreparable harm or undue prejudice.
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.) 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 prior Opinion returned the matter to trial level for development of the record and did not determine any substantive right or liability or threshold issue.
Favours Defendant prevailed
Because the prior Opinion was interlocutory and not a final order, the petition for reconsideration was dismissed.
From the decision · page 2Here, our Opinion returned the matter to the trial level for further proceedings and for development of the record. The decision did not determine any substantive right or liability and did not determine a threshold issue. Accordingly, the Opinion is not a "final" decision and the petition will be dismissed to the extent it seeks reconsideration.
Defendant failed to raise or establish irreparable harm or undue prejudice if removal was not granted.
Favours Defendant prevailed
Because removal is an extraordinary remedy granted only upon such a showing, the petition for removal was denied.
From the decision · page 5In summary, our order for development of the record is not a final order, because it does not determine any substantive right or liability of those involved in the case, or determine a "threshold" issue that is fundamental to the claim for benefits. We deny the petition as a petition for reconsideration, accordingly. We further deny the petition as seeking removal, for failure to raise or demonstrate why defendant would sustain irreparable harm or undue prejudice, or why reconsideration would not be an adequate remedy following development of the record. (Lab. Code § 5900; Cal. Code Regs., tit. 8, § 10955.)
The rules the panel named
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 prior Opinion was interlocutory and not a final order, so the petition for reconsideration was 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.) 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.
Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312
The Appeals Board is the ultimate finder of fact and may resolve conflicts, make credibility determinations, and reject WCJ findings on reconsideration.
The Appeals Board exercised its broad authority to require further development of the record despite WCJ credibility findings.
From the decision · page 3We disagree. The Appeals Board is the ultimate finder of fact. (Lab. Code, § 5907, 5953.) On reconsideration, "the board is empowered to resolve conflicts in the evidence [citations], to make its own credibility determinations [citations], and... to reject the findings of the [WCJ] and enter its own findings on the basis of its review of the record." (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; accord: Lamb v. Workers' Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280§ 281 [39 Cal.Comp.Cases 310].) On reconsideration, the Appeals Board has "considerable discretion" and "enjoys broad authority" (Redner v. Workmen's Comp. Appeals Bd. (1971) 5 Cal.3d 83, 92 [36 Cal.Comp.Cases 371]) and it can "redetermine the case upon the existing record" and take a "different view of the same evidence" than the WCJ. (Argonaut Ins. Exchange v. Industrial Acc. Com. (Bellinger) (1958) 49 Cal.2d 706, 709§ 712 [23 Cal.Comp.Cases 34].)
Cal. Code Regs., tit. 8, 10955(a)
Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result if removal is not granted.
Removal was denied as petitioner failed to demonstrate irreparable harm or undue prejudice.
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,
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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