ADJ12419865 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed and Petition for Removal denied.

Petition for Reconsideration and Petition for Removal filed by defendant seeking to overturn WCJ orders regarding additional QME panels and order taking matter off calendar.

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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.

Medical treatment / UR / IMRDefendant prevailedright shoulder · right wrist · psyche · internal systems · arms · spine · legs · appetite · cognitive function · gastritis · bathroom functions · headaches · migraines · vision · smell · taste

The WCJ's order for additional panels was interlocutory and not a final order subject to reconsideration; the AME report supported the need for additional panels in specialties outside chiropractic medicine; defendant failed to show substantial prejudice or irreparable harm to justify removal.

From the decision · page 4I am further persuaded that prior to defendant's filing of the Declaration of Readiness that culminated in today's trial, applicant made efforts including requesting the AME to address the need for additional specialties, requesting a panel, filing a Declaration of Readiness on the issue of additional panels, and reaching out to defendants via email regarding additional panels as well as objecting to defendant's Declaration of Readiness to Proceed and raising the issue of additional panels on the Pre-trial Conference Statement. Accordingly, pursuant to the McDuffie case previously cited, I find that the request requires further development in the form of Panel QMEs in the additional specialties of internal medicine gastroenterology and psychology, as stated by the Agreed Medical Examiner, Dr. Moses Jacob, in his March 27, 2020 report. I will separately issue an order for the issuance of additional panels in those specialties. I therefore order that the matter go off calendar for further development of the record accordingly. DISPOSITION: The matter is ORDERED OFF CALENDAR for further development of the record. (Id. at 7:12.)

The facts that decided it

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

The AME report deferred internal medicine GI and cognitive psychological or psychiatric issues to appropriate specialists and recommended Panel QMEs in those specialties.

Favours Applicant prevailed

This supported the WCJ's order for additional QME panels in psychology and internal medicine gastroenterology.

From the decision · page 2The parties selected Moses Jacob, D.C., as the Agreed Medical Evaluator (AME), who issued an initial report dated November 14, 2019, and a second report of March 27, 2020.

No findings or orders were made at the February 24, 2021 hearing on the issue of additional panels, and applicant was diligent in seeking issuance of additional panels.

Favours Applicant prevailed

This supported the WCJ's determination that the issue had not been previously litigated and justified further development of the record.

From the decision · page 7The Petition also contends that because applicant sought a hearing on the need for additional panels, and that the resulting February 24, 2021 hearing did not result in the issuance of any panel orders, the issue has been previously resolved adversely to applicant. (Petition, at 8:2.) However, we agree with the WCJ's determination that no actual findings or orders on the QME issue were made at the February 24, 2021 hearing, and we further agree that applicant has been diligent in seeking the issuance of additional panels. (Report, at p. 3.)

The WCJ's orders taking the matter off calendar and for additional QME panels were interlocutory and not final orders subject to reconsideration.

Favours Defendant prevailed

This supported dismissal of the petition for reconsideration.

From the decision · page 6A 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. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p.

Defendant failed to show substantial prejudice or irreparable harm to justify removal of the order for additional QME panels.

Favours Defendant prevailed

This supported denial of the petition for removal.

From the decision · page 6We will also deny the petition to the extent it seeks 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, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

A petition for reconsideration may only be taken from a final order, decision, or award; interlocutory orders are not final and not subject to reconsideration.

The WCJ's order taking the matter off calendar and order for additional QME panels were interlocutory and not final orders subject to reconsideration.

From the decision · page 6A 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. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p.

Cal. Code Regs., tit. 8, section 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is not an adequate remedy.

Defendant failed to show substantial prejudice or irreparable harm to justify removal of the order for additional QME panels.

From the decision · page 6We will also deny the petition to the extent it seeks 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, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy

ADJ12419865 · May 17, 2022

What the panel ordered

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