ADJ10618021 — California WCAB decision

What the panel ordered

Petition for Reconsideration/Removal denied

Petition for Reconsideration/Removal of the Findings of Fact issued by the WCJ on March 29, 2021

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 decision included a threshold issue making it a final order subject to reconsideration, but the applicant only challenged an interlocutory finding regarding a new QME panel, so removal standard was applied and denied because no significant prejudice or irreparable harm was shown.

From the decision · page 1We have considered the allegations of applicant's Petition for Removal, defendant's answer 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 applicant's arguments in the WCJ's report and Opinion on Decision, we will deny the Petition as one seeking reconsideration.

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, 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 bar late challenges to final decisions.

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.

Cal. Code Regs., tit. 8, former 10843(a), now 10955(a) (eff. Jan. 1, 2020)

The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted.

Applied removal standard to deny petition.

From the decision · page 2Removal 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 significant 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, based upon the WCJ's analysis of the merits of applicant's arguments, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy.

ADJ10618021 · June 18, 2021

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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