ADJ14481521 — California WCAB decision

What the panel ordered

Petition for Reconsideration/Removal is denied.

Petition for Reconsideration or, in the Alternative, Petition for Removal from a WCJ decision including a threshold employment finding; Board reviewed the WCJ's report and denied relief.

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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 as the WCJ decision was final due to a threshold employment finding, but the petition only challenged an interlocutory order, so the removal standard applied. Applicant did not show significant prejudice or irreparable harm, nor that reconsideration would be inadequate.

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.)

The facts that decided it

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

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, §§ 5900(a), 5903; Cal. Code Regs., tit. 8, §§ 10605(a)(1), 10600

25 days allowed to file petition for reconsideration from a final decision served by mail in California; time extended to next business day if deadline falls on weekend/holiday.

Applied to determine petition was timely filed on August 30, 2021, after August 3, 2021 decision.

From the decision · page 1Contrary to the WCJ, we find the petition timely. There are 25 days allowed within which to file a petition for reconsideration from a "final" decision that has been served by mail upon an address in California. (Lab. Code, § 5900(a), 5903; Cal. Code Regs., tit. 8, former § 10507(a)(1), now § 10605(a)(1) (eff. Jan. 1, 2020).) This time limit is extended to the next business day if the last day for filing falls on a weekend or holiday. (Cal. Code Regs., tit. 8, former § 10508, now § 10600 (eff. Jan. 1, 2020).) In this case, the WCJ issued the decision on August 3, 2021. Thus, based on the authority cited above, applicant timely filed the petition on Monday, August 30, 2021.

Cal. Code Regs., tit. 8, § 10955(a); Cortez v. WCAB; Kleemann v. WCAB

Removal is an extraordinary remedy, granted only if petitioner shows significant prejudice or irreparable harm and that reconsideration is not an adequate remedy.

Applied to deny removal as applicant 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) 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.

ADJ14481521 · October 29, 2021

What the panel ordered

What was disputed, and how it came out

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The rules the panel named

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