ADJ13461029 · July 1, 2025

The Appeals Board acted timely on the petition within 60 days of transmission and found no significant prejudice or irreparable harm to justify removal; reconsideration was deemed an adequate remedy.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration 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 the petitioner's arguments in the WCJ's report, we will deny the Petition as one seeking reconsideration.

The case was transmitted to the Appeals Board on May 2, 2025, and the Report and Recommendation was served on the same day.

Favours Defendant prevailed

This established the commencement of the 60-day period for the Appeals Board to act on the petition, making the Board's action timely.

From the decision · page 2Here, according to the proof of service for the Report and Recommendation by the WCJ, the Report was served on May 2, 2025, and the case was transmitted to the Appeals Board on May 2, 2025. Service of the Report and transmission of the case to the Appeals Board occurred on the same day. Thus, we conclude that the parties were provided with the notice of transmission required by section 5909(b)(1) because service of the Report in compliance with section 5909(b)(2) provided them with actual notice as to the commencement of the 60-day period on May 2, 2025.

The petitioner only challenged an interlocutory finding/order for development of the record, not a threshold issue.

Favours Defendant prevailed

The Appeals Board applied the removal standard and found no significant prejudice or irreparable harm to justify removal.

From the decision · page 3Although the decision contains a finding that is final, the petitioner is only challenging an interlocutory finding/order for development of the record. Therefore, we will apply the removal standard to our review. (See Gaona, supra.)

Labor Code section 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.

The WCJ's decision included a threshold issue making it a final decision subject to reconsideration.

From the decision · page 2II. If 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.

Labor Code section 5909

A petition for reconsideration is deemed denied unless acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

The Appeals Board acted timely on the petition within 60 days of transmission.

From the decision · page 1I. Former Labor Code section 59091 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

Cal. Code Regs., tit. 8, 10955(a)

The Appeals Board will grant removal only if the petitioner shows significant prejudice or irreparable harm and that reconsideration will not be an adequate remedy.

The petitioner failed to show significant prejudice or irreparable harm and reconsideration was deemed an adequate remedy.

From the decision · page 3Removal 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, § 10955(a); 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, § 10955(a).) Here, 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.