What the panel ordered
Reconsideration granted; WCJ decision amended to clarify no final order on earnings; other findings affirmed
Petition for reconsideration granted to clarify no final order on earnings issue; other findings affirmed
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 WCAB clarified that the issues of average weekly earnings and temporary disability are deferred and returned to the trial level for further proceedings, indicating no final order on these issues.
From the decision · page 2Although the decision contains a finding that is final, the petitioner is only challenging interlocutory findings/orders in the decision regarding development of the record and the recalculation of average weekly earnings. Therefore, we will apply the removal standard to our review. (See Gaona, supra.) Solely for the sake of clarifying that the WCJ did not make any final finding as to the issue of earnings, we will amend Findings of Fact 2 from "[t]he parties are ordered to adjust the applicant's pay to accurately capture unpaid overtime" to "The issues of average weekly earnings and temporary disability are deferred and returned to the trial level for further proceedings. The parties are ordered to adjust the calculation of average weekly earnings, the temporary disability indemnity rate, and penalties and interest, if any. Jurisdiction is reserved at the trial level if there is any dispute.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ's decision includes a finding regarding a threshold issue, making it a final order subject to reconsideration rather than removal.
Favours neutral
This fact establishes the procedural posture and the basis for granting reconsideration.
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 challenges interlocutory findings/orders regarding record development and recalculation of average weekly earnings.
Favours neutral
This fact led the WCAB to apply the removal standard and clarify no final order on earnings.
From the decision · page 2Although the decision contains a finding that is final, the petitioner is only challenging interlocutory findings/orders in the decision regarding development of the record and the recalculation of average weekly earnings. Therefore, we will apply the removal standard to our review. (See Gaona, supra.) Solely for the sake of clarifying that the WCJ did not make any final finding as to the issue of earnings, we will amend Findings of Fact 2 from "[t]he parties are ordered to adjust the applicant's pay to accurately capture unpaid overtime" to "The issues of average weekly earnings and temporary disability are deferred and returned to the trial level for further proceedings. The parties are ordered to adjust the calculation of average weekly earnings, the temporary disability indemnity rate, and penalties and interest, if any. Jurisdiction is reserved at the trial level if there is any dispute.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
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.
Applied to explain the finality of threshold issues and the effect of reconsideration timing.
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.
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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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