ADJ4622929 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed as it sought reconsideration from a non-final order; Petition for Removal denied

Petition for Reconsideration filed by defendant after December 17, 2020 Opinion and Decision After Reconsideration rescinded WCJ Findings of Fact and returned case to trial level for further proceedings

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What was disputed, and how it came out

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Reconsideration / removalDefendant prevailed

The December 17, 2020 order was not a final order as it did not determine substantive rights or threshold issues, so reconsideration was improper; removal was denied as petitioner failed to show substantial prejudice or irreparable harm.

From the decision · page 1Defendant filed a Petition for Reconsideration of our December 17, 2020 Opinion and Decision After Reconsideration. Therein, we rescinded the October 18, 2019 Findings of Fact issued by the workers' compensation administrative law judge (WCJ) and returned this matter to the trial level for further proceedings. Based on our review of the record, we will dismiss the petition as seeking reconsideration from a non-final order, treat the petition as one seeking removal, and deny removal for the reasons stated below.

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, §§ 5900(a), 5902, 5903

A petition for reconsideration may only be taken from a final order, decision, or award.

The December 17, 2020 order was not final, so reconsideration was improper.

From the decision · page 1A 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; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [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 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p. 1075 ["interim orders,

Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a)

Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result if removal is not granted.

Petitioner failed to show substantial prejudice or irreparable harm, so removal was denied.

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 substantial 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).) In this case, we are not persuaded that defendant has established substantial prejudice or irreparable harm. Accordingly, we will deny the Petition as one seeking removal.

ADJ4622929 · February 25, 2021

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