ADJ13758768 — California WCAB decision

What the panel ordered

Reconsideration granted; November 15, 2021 Findings of Fact, Award rescinded; matter returned to trial level for further proceedings and decision by the WCJ

Petition for reconsideration of the November 15, 2021 Findings of Fact, Award granted; matter returned to trial level for further proceedings and decision by the WCJ

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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 / removalApplicant prevailed

The petition was treated as one seeking reconsideration because the WCJ's decision adopted the stipulation regarding the threshold issue of employment, making the WCJ's decision a final order subject to reconsideration rather than removal.

From the decision · page 1Applicant has filed a Petition for Removal or in the Alternative Reconsideration regarding the Findings of Fact, Award dated November 12, 2020 and served November 15, 2021.1 We will treat applicant's petition as one seeking reconsideration for the reasons stated below. We 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 on the recommendation of the WCJ that the record be wiped clean, we will grant reconsideration, rescind the November 15, 2021 decision, and return this matter to the trial level to be set for a mandatory settlement conference. At that time, the parties may attempt to resolve their dispute or the WCJ and the parties may reframe the stipulations and the issues to be tried and the evidence to be presented.

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.

From the decision · page 2of 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.

Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc)

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.

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

Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122]

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.

From the decision · page 2of 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.

ADJ13758768 · January 31, 2022

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