ADJ8668714 — California WCAB decision

What the panel ordered

Order granting reconsideration vacated; petition for reconsideration dismissed; petition for removal denied

Petition for reconsideration and removal filed challenging a WCJ order dated September 16, 2022

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 WCJ's order was interlocutory and not final, so the petition for reconsideration was dismissed; removal was denied because petitioner failed to show substantial prejudice or irreparable harm.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and Removal and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record and based upon the WCJ's analysis of the merits of the petitioner's arguments in the WCJ's report, we will vacate our order granting reconsideration, dismiss the petition as one for reconsideration, and deny the petition as one for removal.2

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.

Lab. Code, §§ 5900(a), 5902, 5903

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

The WCJ's order was interlocutory and not final, so the petition for reconsideration was dismissed.

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.

Cal. Code Regs., tit. 8, § 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 2We now consider the petition as one for 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, § 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 on the discussion as set forth by the WCJ in his report, 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.

ADJ8668714 · July 3, 2023

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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