ADJ15495436 · February 18, 2025

The petition sought reconsideration of non-final orders and was dismissed as untimely under amended Labor Code section 5909, which requires the Appeals Board to act within 60 days of case transmission; the case was transmitted on December 19, 2024, and the decision was timely issued on February 18, 2025.

From the decision · page 1We have considered the allegations of the December 9, 2024 Petition for Reconsideration and/or Removal (Petition) and the December 24, 2024 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, we determine that the Petition seeks reconsideration of non- final orders and will be dismissed. In addition, based on our review of the record, we will deny removal. We will dismiss applicant's subsequent Petition for Removal.

Applicant failed to show substantial prejudice or irreparable harm to justify removal; reconsideration was deemed an adequate remedy; thus, removal was denied and the subsequent removal petition dismissed.

From the decision · page 4that 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.) The petitioner must also 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).)

The case was transmitted to the Appeals Board on December 19, 2024, starting the 60-day period for Board action on the petition.

Favours Defendant prevailed

This established the deadline for timely action on the petition for reconsideration under Labor Code section 5909.

From the decision · page 2Here, according to Events, the case was transmitted to the Appeals Board on December 19, 2024 and 60 days from the date of transmission is Monday, February 17, 2025. The next business day that is 60 days from the date of transmission is Tuesday, February 18, 2025. (See Cal. Code Regs., tit. 8, § 10600(b).)2 This decision is issued by or on Tuesday, February 18, 2025, so that we have timely acted on the petition as required by section 5909(a).

The WCJ's December 4, 2024 orders were intermediate procedural or evidentiary rulings, not final orders affecting substantive rights.

Favours Defendant prevailed

The petition for reconsideration was dismissed because it challenged non-final orders, which are not subject to reconsideration.

From the decision · page 3II. A 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 (Rymer); Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (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. 1075 ["interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not `final'"]; Rymer, supra, at p.

Applicant did not demonstrate irreparable harm or substantial prejudice to justify removal.

Favours Defendant prevailed

Removal was denied because the petitioner failed to meet the high standard required for this extraordinary remedy.

From the decision · page 4Here, applicant did not demonstrate that irreparable harm will result if removal is not granted. Thus, 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. Once the parties proceed to trial, they will have an opportunity to create a record, raise all relevant issues, and submit evidence. The trial WCJ can then consider the evidence and the legal arguments raised by the parties and determine how best to proceed.

Labor Code section 5909

A petition for reconsideration is deemed denied unless the Appeals Board acts within 60 days from case transmission.

Applied to determine timeliness of petition for reconsideration.

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:

Cal. Code Regs., tit. 8, 10600(b)

If the last day to act falls on a weekend or holiday, the act may be performed on the next business day.

Applied to determine the deadline date for Appeals Board action on petition.

From the decision · page 22 WCAB Rule 10600(b) (Cal. Code Regs., tit. 8, § 10600(b)) states that: Unless otherwise provided by law, if the last day for exercising or performing any right or duty to act or respond falls on a weekend, or on a holiday for which the offices of the Workers' Compensation Appeals Board are closed, the act or response may be performed or exercised upon the next business day.

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

Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm is shown and reconsideration is inadequate.

Applied to deny petition for removal due to lack of irreparable harm and adequacy of reconsideration remedy.

From the decision · page 4that 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.) The petitioner must also 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).)