What the panel ordered
Petition for Reconsideration dismissed; Petition for Removal granted; Notice of Intention to Impose Sanctions and Reasonable Expenses issued against attorney Juan Bustos, Tobin Lucks LLP, and Employers Assurance San Francisco.
Defendant sought reconsideration and/or removal of a minute order taking the matter off calendar issued by the WCJ on December 21, 2023. The WCJ filed a Report and Recommendation treating the petition as a removal and recommending denial of removal. The Appeals Board reviewed the record and dismissed the petition for reconsideration as the order was non-final, but granted removal to issue a Notice of Intention to Impose Sanctions.
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.
The Appeals Board dismissed the petition for reconsideration as the order taking the matter off calendar was non-final and granted removal to issue sanctions for bad faith filing and misrepresentations by defendant's attorney and law firm.
From the decision · page 1Defendant seeks reconsideration and/or removal of the minute order taking this matter off calendar (OTOC) issued by a workers' compensation administrative law judge (WCJ) on December 21, 2023.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The order taking the matter off calendar was an interim procedural order, not a final order, and thus not subject to reconsideration.
Favours Defendant prevailed
This justified dismissal of the petition for reconsideration.
From the decision · page 2A petition for writ of review may only be sought from a final order, decision, or award of the Appeals Board. (Lab. Code, § 5900, 5901, 5950; Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249, 1255 ("Hikida"); Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1074 ("Maranian"); Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180 ("Rymer"); Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534§ 535 ("Safeway"); Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45.) Interim orders are not final orders because they do not finally determine questions of the parties' substantive rights or liabilities, nor do they finally determine a threshold issue basic to the employee's right to benefits. (Maranian, supra, 81 Cal.App.4th at p. 1075; Rymer, supra, 211 Cal.App.3d at 1180; Kramer, supra, 82 Cal.App.3d at 45; see Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. ("Gaona") (2016) 5 Cal.App.5th 658, 660.)
The WCJ did not issue any order denying the credit petition but took it off calendar for further discovery.
Favours Applicant prevailed
This showed defendant's contentions were misstatements and supported sanctions for bad faith filing.
From the decision · page 5(Petition for Reconsideration and/or Removal, pp. 1-5.) These contentions are a misstatement of the proceedings, which are not in any way ambiguous. (OTOC, Comments ["WCJ granted A/A's request for OTOC for further discovery over Defendant's objection."]; Report, pp. 1-2.) In fact, there can be no dispute on the record in this case that the WCJ issued no order one way or the other related to defendant's credit petition. The record is crystal clear that no hearing was set on the credit petition, no evidence was taken, and no determination of the credit petition was made by the WCJ. Instead, the record is perfectly clear that the WCJ sustained applicant's objection to setting the credit petition for trial and took the credit petition off calendar pending further discovery on the issues raised by defendant's credit petition. (Ibid.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code sections 5900, 5901, 5950; Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39
A petition for writ of review may only be sought from a final order, decision, or award of the Appeals Board.
The order taking the matter off calendar was an interim procedural order and not a final order subject to reconsideration.
From the decision · page 2A petition for writ of review may only be sought from a final order, decision, or award of the Appeals Board. (Lab. Code, § 5900, 5901, 5950; Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249, 1255 ("Hikida"); Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1074 ("Maranian"); Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180 ("Rymer"); Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534§ 535 ("Safeway"); Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45.) Interim orders are not final orders because they do not finally determine questions of the parties' substantive rights or liabilities, nor do they finally determine a threshold issue basic to the employee's right to benefits. (Maranian, supra, 81 Cal.App.4th at p. 1075; Rymer, supra, 211 Cal.App.3d at 1180; Kramer, supra, 82 Cal.App.3d at 45; see Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. ("Gaona") (2016) 5 Cal.App.5th 658, 660.)
Cal. Code Regs., tit. 8, 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 substantial prejudice or irreparable harm will result if removal is not granted, and reconsideration is inadequate.
The Appeals Board granted removal to issue sanctions but did not make a final decision on the merits of the petition for removal.
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, 600, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, 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.) In addition, 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).)
Labor Code section 5813; Cal. Code Regs., tit. 8, 10421
The Appeals Board may impose sanctions for bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay, including willful failure to comply with obligations, improper motive, or indisputably without merit contentions.
The Appeals Board found defendant's petition may have been filed in bad faith with misrepresentations and improper motives, justifying sanctions.
What proof carried it
The evidence the panel weighed, by kind.
Defendant's contentions were found to be misstatements of the proceedings and without merit, supporting sanctions for bad faith filing.
From the decision · page 5(Petition for Reconsideration and/or Removal, pp. 1-5.) These contentions are a misstatement of the proceedings, which are not in any way ambiguous. (OTOC, Comments ["WCJ granted A/A's request for OTOC for further discovery over Defendant's objection."]; Report, pp. 1-2.) In fact, there can be no dispute on the record in this case that the WCJ issued no order one way or the other related to defendant's credit petition. The record is crystal clear that no hearing was set on the credit petition, no evidence was taken, and no determination of the credit petition was made by the WCJ. Instead, the record is perfectly clear that the WCJ sustained applicant's objection to setting the credit petition for trial and took the credit petition off calendar pending further discovery on the issues raised by defendant's credit petition. (Ibid.)
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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