What the panel ordered
Petition for reconsideration dismissed; petition for removal denied; matter returned to trial level for further proceedings.
Lien claimant petitioned for reconsideration/removal of a Minutes of Hearing (MOH) that stated a lien settlement had occurred; the WCJ recommended dismissal as the MOH was not a final order and no prejudice resulted.
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 MOH did not constitute a final order approving or disapproving the lien settlement, so reconsideration is not available.
No binding settlement existed and no significant prejudice or irreparable harm resulted from the MOH; lien claimant can file a Declaration of Readiness to Proceed.
From the decision · page 3Based on our independent review of the record in this matter, we are not persuaded that this case presents extraordinary circumstances justifying removal. Specifically, because the WCJ's MOH did not actually approve a lien settlement, no effective, i.e., binding, settlement exists that would subject lien claimant to significant prejudice or irreparable harm absent removal. The only effect of the MOH was to take the matter off calendar. Lien claimant need only file a Declaration of Readiness to Proceed to a lien trial so that it may obtain due process and present evidence on its claim(s). (San Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (1999) 74 Cal.App.4th 928, 936 [64 Cal.Comp.Cases 986] ["The essence of due process is simply notice and the opportunity to be heard."].)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The MOH did not constitute a final order approving or disapproving the lien settlement.
Favours Defendant prevailed
Without a final order, reconsideration is not available.
No binding settlement existed and no significant prejudice or irreparable harm resulted from the MOH.
Favours Defendant prevailed
Without prejudice or harm, removal is not warranted.
From the decision · page 3Based on our independent review of the record in this matter, we are not persuaded that this case presents extraordinary circumstances justifying removal. Specifically, because the WCJ's MOH did not actually approve a lien settlement, no effective, i.e., binding, settlement exists that would subject lien claimant to significant prejudice or irreparable harm absent removal. The only effect of the MOH was to take the matter off calendar. Lien claimant need only file a Declaration of Readiness to Proceed to a lien trial so that it may obtain due process and present evidence on its claim(s). (San Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (1999) 74 Cal.App.4th 928, 936 [64 Cal.Comp.Cases 986] ["The essence of due process is simply notice and the opportunity to be heard."].)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, §§ 5900(a), 5902, 5903; Cal. Code Regs., tit. 8, § 10700(b)
Reconsideration may only be sought from a final order, decision or award.
MOH did not constitute a final order approving or disapproving the lien settlement, so reconsideration is not available.
Lab. Code § 5310; WCAB Rule 10955
Removal is discretionary and requires showing of significant prejudice or irreparable harm, and reconsideration must not be an adequate remedy.
No binding settlement existed and no significant prejudice or irreparable harm resulted from the MOH; lien claimant can file a Declaration of Readiness to Proceed.
From the decision · page 3Lien claimant also seeks removal as an alternative remedy. The Appeals Board's power to remove a case to itself under Labor Code section 5310 is discretionary and is generally employed only as an extraordinary remedy. (Butte County v. Workers' Comp. Appeals Bd. (1991) 56 Cal.Comp.Cases 312 (writ den.); Swedlow, Inc. v. Workers' Comp. Appeals Bd. (1985) 48 Cal.Comp.Cases 476 (writ den.).) To obtain relief under this provision, WCAB Rule 10955 requires that a party must establish either that "[t]he order, decision or action will result in significant prejudice" or "irreparable harm," and that reconsideration will not be an adequate remedy after issuance of a final order, decision or award.
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About this page
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