ADJ10956751 — California WCAB decision

What the panel ordered

Petition for Disqualification dismissed; Petition for Reconsideration dismissed; Petition for Removal denied

Petitions for Disqualification, Reconsideration, and Removal filed by Applicant

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

No final order had issued, so reconsideration was improper; removal was denied because petitioner failed to show substantial prejudice or irreparable harm and reconsideration was an adequate remedy.

From the decision · page 1Applicant filed a Petition for Disqualification on May 24, 2021 and a Petition for Reconsideration or in the alternative Petition for Removal on May 28, 2021. We have considered the allegations of the Petitions and the contents of the June 29, 2021 Report and Recommendation on Petition for Reconsideration/Removal 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 dismiss the Petition for Reconsideration and deny the Petition for Removal. We will also dismiss the Petition for Disqualification.

The facts that decided it

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 properly be taken only from a "final" order, decision, or award.

No final order had issued, so reconsideration was improper.

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. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v.

Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a)

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

Removal was denied because petitioner failed to show substantial prejudice or irreparable harm and reconsideration was an adequate remedy.

From the decision · page 2We also deny the petition as one seeking 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, 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).) Contrary to the WCJ, we found the Petition for Removal timely. However, based upon the WCJ's analysis of the merits of the petitioner'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.

ADJ10956751 · August 9, 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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