Lab. Code, §§ 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068
A petition for reconsideration may only be taken from a final order, decision, or award, which determines a substantive right, liability, or a threshold issue fundamental to the claim for benefits. Interlocutory procedural or evidentiary decisions are not final orders.
The Board found the May 21, 2021 Order was not a final order because it resolved only an intermediate procedural issue and did not determine any substantive right, liability, or threshold issue.
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,
which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions,
are not `final' "]; Rymer, supra, at p. 1180 ["[t]he term [`final'] does not include intermediate
Cal. Code Regs., tit. 8, § 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274
Removal is an extraordinary remedy granted only if the petitioner shows substantial prejudice or irreparable harm will result if removal is not granted, and that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues.
The Board found applicant did not demonstrate substantial prejudice or irreparable harm, nor that reconsideration would be inadequate if a final adverse decision issued.
From the decision · page 2We will also deny the petition to the extent it seeks removal. 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. (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).)
Here, we are not persuaded that substantial prejudice or irreparable harm will result if removal is
denied and/or that reconsideration will not be an adequate remedy if the matter ultimately proceeds
to a final decision adverse to petitioner.