ADJ9442121 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Applicant filed a Petition for Removal, treated as a Petition for Reconsideration, challenging non-final orders deferring issues pending further development of the medical record.

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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

Petition denied because the April 8, 2020 supplemental report did not address all deficiencies and further evidence was required.

From the decision · page 2The removal standard requires "significant prejudice" or "irreparable harm." (Cal. Code Regs, tit. 8, § 10955, subd. (a).) Given applicant's medical condition, and the fact that he is domiciled outside of California, any undue delays in this case do meet the removal standard. Nevertheless, we will deny applicant's Petition because applicant appears to be incorrect in his contention that admission into evidence of Dr. Einbund's April 8, 2020 report would allow the WCJ to "make a definitive ruling" (Petition at p. 2) or that apportionment is the only issue that requires further evidence. In her Opinion on Decision, the WCJ listed several perceived deficiencies that she believed required further evidence. (See Opinion on Decision at pp. 18-20.) While the applicant acted reasonably in procuring the April 8, 2020 report, since it was unclear whether the discovery had been reopened by the WCJ's January 13, 2020 letter outlining deficiencies in the record, the April 8, 2020 report does not appear to address all of the concerns outlined in the Opinion on Decision.

The facts that decided it

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

April 8, 2020 supplemental report by Dr. Einbund did not address all deficiencies outlined by the WCJ.

Favours Defendant prevailed

Report was insufficient to allow a definitive ruling or resolve all outstanding issues, leading to denial of the Petition.

From the decision · page 2The removal standard requires "significant prejudice" or "irreparable harm." (Cal. Code Regs, tit. 8, § 10955, subd. (a).) Given applicant's medical condition, and the fact that he is domiciled outside of California, any undue delays in this case do meet the removal standard. Nevertheless, we will deny applicant's Petition because applicant appears to be incorrect in his contention that admission into evidence of Dr. Einbund's April 8, 2020 report would allow the WCJ to "make a definitive ruling" (Petition at p. 2) or that apportionment is the only issue that requires further evidence. In her Opinion on Decision, the WCJ listed several perceived deficiencies that she believed required further evidence. (See Opinion on Decision at pp. 18-20.) While the applicant acted reasonably in procuring the April 8, 2020 report, since it was unclear whether the discovery had been reopened by the WCJ's January 13, 2020 letter outlining deficiencies in the record, the April 8, 2020 report does not appear to address all of the concerns outlined in the Opinion on Decision.

Applicant's medical condition and out-of-state domicile met removal standard for significant prejudice or irreparable harm.

Favours Applicant prevailed

Despite meeting removal standard, relief was denied because further evidence was required.

From the decision · page 2The removal standard requires "significant prejudice" or "irreparable harm." (Cal. Code Regs, tit. 8, § 10955, subd. (a).) Given applicant's medical condition, and the fact that he is domiciled outside of California, any undue delays in this case do meet the removal standard. Nevertheless, we will deny applicant's Petition because applicant appears to be incorrect in his contention that admission into evidence of Dr. Einbund's April 8, 2020 report would allow the WCJ to "make a definitive ruling" (Petition at p. 2) or that apportionment is the only issue that requires further evidence. In her Opinion on Decision, the WCJ listed several perceived deficiencies that she believed required further evidence. (See Opinion on Decision at pp. 18-20.) While the applicant acted reasonably in procuring the April 8, 2020 report, since it was unclear whether the discovery had been reopened by the WCJ's January 13, 2020 letter outlining deficiencies in the record, the April 8, 2020 report does not appear to address all of the concerns outlined in the 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, subd. (a)

Removal standard requires significant prejudice or irreparable harm.

Applicant's medical condition and domicile met removal standard but did not justify relief because further evidence was needed.

From the decision · page 2The removal standard requires "significant prejudice" or "irreparable harm." (Cal. Code Regs, tit. 8, § 10955, subd. (a).) Given applicant's medical condition, and the fact that he is domiciled outside of California, any undue delays in this case do meet the removal standard. Nevertheless, we will deny applicant's Petition because applicant appears to be incorrect in his contention that admission into evidence of Dr. Einbund's April 8, 2020 report would allow the WCJ to "make a definitive ruling" (Petition at p. 2) or that apportionment is the only issue that requires further evidence. In her Opinion on Decision, the WCJ listed several perceived deficiencies that she believed required further evidence. (See Opinion on Decision at pp. 18-20.) While the applicant acted reasonably in procuring the April 8, 2020 report, since it was unclear whether the discovery had been reopened by the WCJ's January 13, 2020 letter outlining deficiencies in the record, the April 8, 2020 report does not appear to address all of the concerns outlined in the Opinion on Decision.

Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658

Order deferring issues for future determination is not a final order and subject to removal standard.

Applicant's Petition challenged non-final orders deferring issues, so removal standard applied.

From the decision · page 2Preliminarily, we note that a decision issued by the WCAB may address a hybrid of both threshold and interlocutory issues. If a party challenges a hybrid decision, the petition seeking relief is treated as a petition for reconsideration because the decision resolves a threshold issue. However, if the petitioner challenging a hybrid decision only disputes the WCJ's determination regarding interlocutory issues, then the Appeals Board will evaluate the issues raised by the petition under the removal standard applicable to non-final decisions. Although the Findings and Order contains a finding that is final (applicant's permanent and stationary date), applicant's Petition only challenges the non-final orders deferring all other issues. An order deferring issues for future determination is not a final order and is thus subject to the removal standard rather than the reconsideration standard. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658 [81 Cal.Comp.Cases 1122].)

ADJ9442121 · May 20, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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