What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed and denied by the Appeals Board panel after review of the WCJ report and record.
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 Appeals Board found the petition was timely filed and that the petitioner failed to show significant prejudice or irreparable harm to warrant removal. The WCJ's findings and report were relied upon to deny the petition.
From the decision · page 1We have considered the allegations of the Petition for Reconsideration (Petition) and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and based upon the WCJ's analysis of the merits of the petitioner's arguments in the WCJ's report, we will deny the Petition.
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 August 28, 2024, starting the 60-day period for action on the petition.
Favours Defendant prevailed
This established the timeliness of the petition for reconsideration.
From the decision · page 2Under Labor Code section 5909(a), the Appeals Board must act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board. Transmission is reflected in Events in the Electronic Adjudication Management System (EAMS). Specifically, in Case Events, under Event Description is the phrase "Sent to Recon" and under Additional Information is the phrase "The case is sent to the Recon board."
The defendant's petition contained general allegations of untruthfulness without citation to evidence.
Favours Applicant prevailed
Lack of evidentiary support undermined the petition's merit and credibility.
From the decision · page 3(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 the petition is denied and/or that reconsideration will not be an adequate remedy. Additionally, we note that defendant's general allegations in its Petition of applicant's untruthfulness contain no citation to evidence. We remind defendant that the Appeals Board Rules require: (1) that "[e]very petition for reconsideration... shall fairly state all the material evidence
The WCJ found the record required further development and the Appeals Board agreed with this finding.
Favours Defendant prevailed
Supported denial of the petition seeking reconsideration and further development of the record.
From the decision · page 4At trial, the issue raised was whether applicant sustained injury arising out of and in the course of employment. In its Petition, defendant asserts that applicant was not truthful, and the WCJ made a finding in response, a finding that defendant does not dispute. If defendant seeks a determination that applicant's injury did not arise out of and in course of his employment, then defendant must make explain in its Petition why that is so, with specific citations to evidence. Here, defendant did not. Defendant appears to contend that applicant's conduct somehow bars further development of the record with medical evidence. As pointed out by the WCJ, decisions of the WCAB must be based on substantial medical evidence. Here, the WCJ determined that the record required further development, and we agree that his decision was appropriate.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
A petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.
The Appeals Board timely acted on the petition within the 60-day period.
From the decision · page 2I. Former Labor Code section 59091 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, Labor Code 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 significant prejudice or irreparable harm will result and reconsideration is inadequate.
The petitioner failed to demonstrate significant prejudice or irreparable harm to justify removal.
From the decision · page 3II. Although the decision contains a finding that is final, the petitioner is only challenging interlocutory findings in the decision regarding further development of the record by obtaining a supplemental PQME report. Therefore, we will apply the removal standard to our review. (See Gaona, supra.) 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 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, 10945 and 10972
Petitions must fairly state all material evidence and each contention separately and clearly.
The defendant's petition lacked specific citations to evidence and was unsupported.
From the decision · page 4relative to the point or points at issue [and] [e]ach contention contained in a petition for reconsideration... shall be separately stated and clearly set forth" (Cal. Code Regs., tit. 8, § 10945 and (2) that "a petition for reconsideration... may be denied or dismissed if it is unsupported by specific references to the record and to the principles of law involved." (Cal. Code Regs., tit. 8, § 10972.)
What proof carried it
The evidence the panel weighed, by kind.
Defendant's general allegations of applicant's untruthfulness contained no citation to evidence and were not persuasive.
From the decision · page 3(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 the petition is denied and/or that reconsideration will not be an adequate remedy. Additionally, we note that defendant's general allegations in its Petition of applicant's untruthfulness contain no citation to evidence. We remind defendant that the Appeals Board Rules require: (1) that "[e]very petition for reconsideration... shall fairly state all the material evidence
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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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