What the panel ordered
Petition for reconsideration dismissed; petition for removal denied
Petition for reconsideration dismissed as untimely; petition for removal denied
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 petition for reconsideration was dismissed because it was not acted upon within the 60-day period required by Labor Code section 5909, as the case was transmitted on July 8, 2025, and the decision was issued on September 8, 2025, the 60th day.
From the decision · page 2I. Former Labor Code section1 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.
The petition for removal was denied because the order did not determine any substantive right or liability, and the petitioner failed to show substantial prejudice or irreparable harm if removal was denied.
From the decision · page 4Here, the Appeals Board's Decision does not determine any substantive right or liability. On the contrary, the Appeals Board's Decision rescinded the Findings and Order issued by the WCJ. Accordingly, it is not a "final" decision subject to reconsideration and as such, defendant's petition for reconsideration will be dismissed.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The case was transmitted to the Appeals Board on July 8, 2025, and the decision was issued on September 8, 2025, the 60th day after transmission
Favours Defendant prevailed
This timing met the requirement of Labor Code section 5909 for timely action on petitions for reconsideration, leading to dismissal of the petition as untimely
From the decision · page 2Here, according to Events, the case was transmitted to the Appeals Board on July 8, 2025, and 60 days from the date of transmission is Saturday, September 6, 2025. The next business day that is 60 days from the date of transmission is Monday, September 8, 2025. (See Cal. Code Regs., tit. 8, § 10600(b).)2 This decision is issued by or on Monday, September 8, 2025, so that we have timely acted on the petition as required by section 5909(a).
The Appeals Board's Decision rescinded the WCJ's Findings and Order and did not determine any substantive right or liability
Favours Defendant prevailed
Because the order was not final, the petition for removal was denied as petitioner failed to show substantial prejudice or irreparable harm
From the decision · page 4Here, the Appeals Board's Decision does not determine any substantive right or liability. On the contrary, the Appeals Board's Decision rescinded the Findings and Order issued by the WCJ. Accordingly, it is not a "final" decision subject to reconsideration and as such, defendant's petition for reconsideration will be dismissed.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
The QME opined that it is more likely that the applicant acquired COVID-19 at work or that the employment subjected him to a special risk of exposure in excess of the general population, meeting the Bethlehem Steel standard for industrial causation.
The QME's testimony was considered in the context of industrial causation and the COVID-19 presumption, with the Appeals Board finding the opinion to meet the standard of reasonable medical probability.
From the decision · page 9Because the QME's testimony is somewhat convoluted, we returned the matter to the WCJ to consider the issue of whether further medical-legal reporting is necessary in order to constitute substantial medical evidence. (Opinion and Order, issued on June 9, 2025.) However, based on the QME's testimony taken as a whole, the QME appears to opine that it is more likely that the applicant acquired COVID-19 at work or that the employment subjected him to a special risk of exposure in excess of the general population, the standard set forth in Bethlehem Steel. (Bethlehem Steel, supra, at 744; Exhibit V, May 16, 2024, deposition transcript of QME Dr. Hendel.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, 5909
Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board
The petition was dismissed as untimely because the decision was issued on the 60th day after transmission.
From the decision · page 2I. Former Labor Code section1 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.
Cal. Code Regs., tit. 8, 10955(a)
Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result and reconsideration is inadequate
The petition for removal was denied because the petitioner failed to show substantial prejudice or irreparable harm and reconsideration was adequate.
From the decision · page 4Cal.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); Cortez, supra; Kleemann, supra.) Additionally, 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).)
Lab. Code, 3600(a)
Injury arising out of and in the course of employment (AOE/COE) requires proof by preponderance of evidence
Applicant bears the burden of proving injury AOE/COE by preponderance of evidence in absence of presumption.
From the decision · page 6In the absence of a presumption, applicant bears the burden of proving injury arising out of and in the course of employment (AOE/COE) by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.)
Bethlehem Steel Co. v. Industrial Acc. Com. (1943) 21 Cal.2d 742
Medical evidence must show it is more likely the disease was acquired at work or employment subjected employee to special risk exceeding general population
The QME's opinion met the Bethlehem Steel standard for industrial causation by reasonable medical probability.
From the decision · page 6In cases where the injury is caused by a communicable disease such as COVID-19, medical evidence is required to establish industrial causation by demonstrating that it is more likely that the injured worker acquired the disease at work or that the employment subjected the employee to a special risk of exposure in excess of that of the general population. (Bethlehem Steel Co. v. Industrial Acc. Com. (1943) 21 Cal.2d 742 [8 Cal.Comp.Cases 61].)
What proof carried it
The evidence the panel weighed, by kind.
QME's testimony on special risk of exposure in excess of the general population
From the decision · page 7On May 16, 2024, the parties took the deposition of QME Eli E. Hendel, M.D., which was admitted into evidence as Exhibit V. We also note that petitioner isolated portions of the QME's testimony. Since the selections seem aimed at rebutting the COVID-19 presumptions, which we reiterate are not applicable here, we include portions of Dr. Hendel's deposition which relate to whether there was a special risk of exposure in excess of that of the general population:
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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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