ADJ8320332 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration filed and denied by the Appeals Board based on the WCJ's report and analysis

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 Appeals Board found no significant prejudice or irreparable harm to justify removal and found reconsideration an adequate remedy, thus denying the petition.

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 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 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. We observe that based on our review, the WCJ correctly analyzed the provisions of Labor Code section 4600 and Cal. Code Regs., tit. 8, § 9767.5(f)-(h) in the WCJ's Report and Opinion on Decision.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The WCJ's decision included a finding regarding a threshold issue, making it a final order subject to reconsideration rather than removal.

Favours Defendant prevailed

This fact established the procedural posture and the standard of review for the petition.

From the decision · page 2Here, the WCJ's decision includes a finding regarding a threshold issue. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal.

The petitioner only challenged interlocutory findings, so the Appeals Board applied the removal standard rather than reconsideration standard.

Favours Defendant prevailed

This limited the scope of review and influenced the denial of the petition.

From the decision · page 2Although the decision contains a finding that is final, the petitioner is only challenging interlocutory findings in the decision. Therefore, we will apply the removal standard to our review. (See Gaona, supra.)

The petitioner failed to show significant prejudice or irreparable harm if removal was not granted, and reconsideration was deemed an adequate remedy.

Favours Defendant prevailed

This was the key reason for denying the petition for removal and reconsideration.

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 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 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. We observe that based on our review, the WCJ correctly analyzed the provisions of Labor Code section 4600 and Cal. Code Regs., tit. 8, § 9767.5(f)-(h) in the WCJ's Report and Opinion on Decision.

The rules the panel named

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

Cal. Code Regs., tit. 8, 10955(a)

Removal is an extraordinary remedy rarely exercised by the Appeals Board; it will grant removal only if the petitioner shows significant prejudice or irreparable harm and that reconsideration will not be an adequate remedy.

The Appeals Board applied this standard to deny the petition for removal and reconsideration.

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 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 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. We observe that based on our review, the WCJ correctly analyzed the provisions of Labor Code section 4600 and Cal. Code Regs., tit. 8, § 9767.5(f)-(h) in the WCJ's Report and Opinion on Decision.

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 Appeals Board applied this statute to explain the finality of decisions and the effect of untimely petitions for reconsideration.

From the decision · page 1If a decision includes resolution of a "threshold" issue, then it is a "final" decision, whether or not all issues are resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc).) Threshold issues include, but are not limited to, the following: injury arising out of and in the course of employment, jurisdiction, the existence of an employment relationship and statute 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.

ADJ8320332 · April 22, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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