ADJ14004039 — California WCAB decision

What the panel ordered

Petition for reconsideration/removal denied by the Appeals Board panel.

Petition for reconsideration/removal filed and denied by the Appeals Board panel.

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

The Appeals Board panel found the petition was timely filed and that removal was not warranted because the petitioner failed to show significant prejudice or irreparable harm and reconsideration was an adequate remedy.

From the decision · page 1We have considered the allegations of the Petition for Removal 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 facts that decided it

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

The case was transmitted to the Appeals Board and the Report was served on August 26, 2024, commencing the 60-day period for the Appeals Board to act on the petition.

The rules the panel named

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

Labor Code section 5909

A petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within 60 days from the date a trial judge transmits a case to the appeals board.

The Appeals Board acted on the petition within the 60-day period, so the petition was timely.

From the decision · page 1Preliminarily, we note that former Labor Code1 section 5909 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:

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

The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted, and that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues.

The petitioner failed to show significant prejudice or irreparable harm and reconsideration was an adequate remedy, so removal was denied.

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.

ADJ14004039 · October 22, 2024

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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