ADJ18430275 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed as it challenged a non-final order; Petition for Removal denied for failure to demonstrate irreparable harm or significant prejudice.

Petition for Reconsideration filed by applicant's attorney challenging an order taking the matter off calendar; WCJ recommended dismissal of the petition as the order was non-final and denial of removal for failure to show irreparable harm or significant prejudice.

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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 dismissed because the order taking the matter off calendar was a non-final order, and reconsideration is only proper for final orders. The petitioner failed to show irreparable harm or significant prejudice to justify removal.

From the decision · page 7Accordingly, we dismiss applicant's Petition for Reconsideration as applicant seeks reconsideration of a non-final order taking this matter off calendar. We treat the petition as one seeking removal and deny removal.

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.

Ledezma v. Kareem Cart Commissary and Mfg. (2024) 89 Cal. Comp. Cases 462 (En Banc)

A petition for reconsideration may only be taken from a final order, decision, or award; interlocutory procedural or evidentiary decisions are not final orders.

The petition was dismissed because the order taking the matter off calendar was an interlocutory procedural order, not a final order.

From the decision · page 4A 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, 260 Cal. Rptr. 76; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal. App. 3d 528, 534§ 535 [163 Cal. Rptr. 750, 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 [97 Cal. Rptr. 2d 418, 65 Cal. Comp.

Cal. Code Regs., tit. 8, 10843(a)

The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted, and that reconsideration will not be an adequate remedy.

Removal was denied because the petitioner failed to demonstrate irreparable harm or significant prejudice.

From the decision · page 6III. Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) 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, § 10843(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, § 10843(a).) Whether to bifurcate an issue for trial is within the discretion of the WCJ, who may order bifurcation upon a showing of good cause.

ADJ18430275 · November 18, 2024

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