ADJ17477426 · July 28, 2025

The petition for reconsideration was premature because the record was insufficient to evaluate applicant's contentions, and the matter should be returned to the WCJ for further proceedings.

From the decision · page 1We have considered the allegations of the petition and the record in this matter. For the reasons discussed below, we will treat applicant's petition as one seeking reconsideration, dismiss reconsideration as premature, and return this matter to the trial level so that applicant's petition can be treated as a Petition to Set Aside.

The Stipulated Award determined substantive rights and liability between the parties, making it a final order.

Favours Defendant prevailed

This fact established that reconsideration, not removal, was the proper remedy.

From the decision · page 31075 ["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. 45 ["[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 Stipulated Award determines a substantive rights and liability as between the parties. Therefore, it is a final order from which the proper remedy is reconsideration and not removal.

There was no record to evaluate applicant's contentions regarding duress or the request to set aside the award.

Favours Defendant prevailed

Without a record, the Board could not address the merits and dismissed the petition as premature.

From the decision · page 4Here, in the absence of a record, we are unable to evaluate applicant's contentions. All parties in workers' compensation proceedings retain their fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker, supra, at 157-158 citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].)

Labor Code § 5909

A petition for reconsideration is deemed denied unless acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

The Board must act within 60 days of transmission, as reflected in EAMS events.

From the decision · page 2I. 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, 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.

Labor Code §§ 5900(a), 5902, 5903

A petition for reconsideration is the proper remedy from a final order, decision, or award.

The Stipulated Award is a final order; reconsideration, not removal, is the proper remedy.

From the decision · page 3II. A petition for reconsideration is the proper remedy to be taken 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.