ADJ17732618 — California WCAB decision

What the panel ordered

Petition for reconsideration/removal dismissed

Petition for removal filed February 14, 2024, challenging WCJ Findings and Order of February 5, 2024; WCJ rescinded original order and issued amended order on February 22, 2024, rendering petition moot

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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 WCJ's Findings and Order contained a final order on injury, so the petition is treated as one for reconsideration; the WCJ rescinded the original order within the 15-day jurisdiction period, rendering the petition moot; therefore, the petition was dismissed.

From the decision · page 1Applicant seeks removal in response to the Findings and Order issued by a workers' compensation administrative law judge (WCJ) on February 5, 2024, wherein the WCJ found that while employed by defendant on March 15, 2021, applicant sustained injury to her lumbar spine; and that applicant's injury caused permanent disability but that the opinions of the qualified medical evaluator (QME) were not substantial evidence on the issue of apportionment. The WCJ ordered that the parties return to the QME for further reporting on the issue of apportionment.

The facts that decided it

The rules the panel named

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

Lab. Code, 5904

Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal.

The WCJ's Findings and Order contained a final order on injury, so the petition is treated as one for reconsideration.

From the decision · page 2statute of limitations issues. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal. (See Lab. Code, § 5904.) Alternatively, non-final decisions may later be challenged by a petition for reconsideration once a final decision issues.

WCAB Rule 10961 (Cal. Code Regs., tit. 8, 10961)

Jurisdiction remains with the district office for 15 days after timely filing of a petition for reconsideration; the WCJ may rescind the order within this period, rendering the petition moot.

The WCJ rescinded the original order within the 15-day jurisdiction period, rendering the petition moot.

From the decision · page 2However, WCAB Rule 10961 (Cal. Code Regs., tit. 8, § 10961) provides that jurisdiction remains with the district office for 15 days after the timely filing of a petition for reconsideration and sets forth the following actions that a WCJ may take in response: (a) The WCJ may prepare a report and transfer jurisdiction to the Appeals Board to address the merits of the petition (Cal. Code Regs., tit. 8, § 10961(a); see Cal. Code Regs., tit. 8, § 10962); (b) The WCJ may rescind the entire order, decision or award and initiate proceedings within 30 days (Cal. Code Regs., tit. 8, § 10961(b)); or (c) The WCJ may rescind the order, decision or award and issue an amended order, decision or award, and a new petition for reconsideration must be filed in response to the amended order, decision or award. (Cal. Code Regs., tit. 8, § 10961(c).)

ADJ17732618 · April 15, 2024

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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