ADJ16328028 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed; Petition for Removal denied

Petition for Reconsideration and Petition for Removal filed by defendant; WCJ report considered by Appeals Board

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 Order Rescinding Findings and Order is an interim order, not a final order subject to reconsideration; removal denied as no substantial prejudice or irreparable harm shown.

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; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (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. 1180 ["[t]he term [`final'] does not include intermediate procedural orders or discovery orders"]; Kramer, supra, at p.

The facts that decided it

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

The Order Rescinding Findings and Order is an interim procedural order, not a final order.

Favours Defendant prevailed

Because only final orders are subject to reconsideration, the petition was dismissed.

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; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (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. 1180 ["[t]he term [`final'] does not include intermediate procedural orders or discovery orders"]; Kramer, supra, at p.

The case was transmitted to the Appeals Board on August 7, 2024, and the petition was acted on timely within 60 days.

Favours Defendant prevailed

This satisfied the statutory requirement for timely action on the petition for reconsideration.

From the decision · page 2Here, according to Events, the case was transmitted to the Appeals Board on August 7, 2024 and 60 days from the date of transmission is Sunday, October 6, 2024. The next business day that is 60 days from the date of transmission is Monday, October 7, 2024. (See Cal. Code Regs., tit. 8, § 10600(b).)2 This decision is issued by or on Monday, October 7, 2024, so that we have timely acted on the petition as required by Labor Code section 5909(a).

Petitioner did not demonstrate substantial prejudice or irreparable harm if removal was denied.

Favours Defendant prevailed

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

From the decision · page 4supra.) 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).) We are not persuaded that substantial prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy if the matter ultimately proceeds to a final decision adverse to petitioner.

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 must be acted upon within 60 days of transmission to the Appeals Board; a petition for reconsideration may only be taken from a final order.

The Appeals Board acted timely on the petition and found the order was not final, so reconsideration was dismissed.

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, Labor Code 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)

Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result if removal is not granted; reconsideration must not be an adequate remedy.

Removal denied because petitioner did not show substantial prejudice or irreparable harm and reconsideration was adequate.

From the decision · page 345 ["[t]he term [`final'] does not include intermediate procedural orders"].) Such interlocutory decisions include, but are not limited to, pre-trial orders regarding evidence, discovery, trial setting, venue, or similar issues. Here, the Order Rescinding Findings and Order is an interim procedural and/or discovery order. The Order does not represent a final order finally determining any substantive right or liability of any party, nor finally determining any threshold issue basic to applicant's right to benefit. The Order deferred any finding on sanctions/costs and ordered the matter off-calendar pending discovery, thereby ensuring due process for all parties involved. We dismiss the Petition for Reconsideration as the Order Rescinding Findings and Order is not a final order and thus not subject to reconsideration. We will also deny the petition to the extent it seeks removal. Removal 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 substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann,

ADJ16328028 · October 7, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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