What the panel ordered
Petition for reconsideration/removal is denied.
Petition for reconsideration/removal of a WCJ decision including threshold and interlocutory issues; WCAB reviewed the petition and WCJ's report.
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 WCJ's decision included threshold issues making it final and subject to reconsideration, but the petition only challenged interlocutory findings; the removal standard applies and petitioner did not show significant prejudice or irreparable harm.
From the decision · page 4the merits of the petitioner's arguments, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ's decision included findings on employment and injury AOE/COE, which are threshold issues making the decision final and subject to reconsideration.
Favours Defendant prevailed
Determined the procedural posture and the standard to apply to the petition.
From the decision · page 3However, if the petitioner challenging a hybrid decision only disputes the WCJ's determination regarding interlocutory issues, then the Appeals Board will evaluate the issues raised by the petition under the removal standard applicable to non-final decisions. Here, the WCJ's decision includes a finding regarding employment and injury AOE/COE, threshold issues. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal. Although the decision contains a finding that is final, the petitioner is only challenging an interlocutory finding/order in the decision. 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.
Petitioner only challenged interlocutory findings/orders, not the threshold issues.
Favours Defendant prevailed
Led the Board to apply the removal standard rather than reconsideration standard.
From the decision · page 3However, if the petitioner challenging a hybrid decision only disputes the WCJ's determination regarding interlocutory issues, then the Appeals Board will evaluate the issues raised by the petition under the removal standard applicable to non-final decisions. Here, the WCJ's decision includes a finding regarding employment and injury AOE/COE, threshold issues. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal. Although the decision contains a finding that is final, the petitioner is only challenging an interlocutory finding/order in the decision. 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.
Petitioner did not show significant prejudice or irreparable harm would result if removal was denied, nor that reconsideration would be inadequate.
Favours Defendant prevailed
Failure to meet the removal standard resulted in denial of the petition.
From the decision · page 4the merits of the petitioner's arguments, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code § 5909; Cal. Code Regs., tit. 8, § 10955
A petition for reconsideration is deemed denied unless acted upon within 60 days from the date a trial judge transmits a case to the appeals board; removal is granted only if significant prejudice or irreparable harm will result and reconsideration is not an adequate remedy.
Applied to determine timeliness and appropriateness of reconsideration/removal petition.
From the decision · page 3(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, § 10955(a).) Here, based upon the WCJ's analysis of
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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.
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