What the panel ordered
Petition for Reconsideration denied
Petition for Reconsideration or Removal under LC § 5310 and CCR § 10955
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 petition challenged an interlocutory finding regarding the adequacy of the Medical Provider Network (MPN), and the Appeals Board found no significant prejudice or irreparable harm to justify removal, thus denying the petition.
From the decision · page 1We have considered the allegations of the "Petition for Reconsideration (or in the Alternative- Petition for Removal Per LC § 5310 and CCR § 10955)" 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 WCJ's decision included a final finding that applicant sustained an injury arising out of and in the course of employment to his lumbar spine.
Favours Defendant prevailed
This made the WCJ's decision a final order subject to reconsideration rather than removal, limiting the petitioner's challenge options.
From the decision · page 2Here, the WCJ's decision includes a finding regarding a threshold issue, applicant sustained an injury arising out of and in the course of employment to his lumbar spine. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal.
The petitioner only challenged an interlocutory finding regarding the adequacy of the Medical Provider Network (MPN).
Favours Defendant prevailed
Because the challenge was to an interlocutory issue, the Appeals Board applied the removal standard rather than reconsideration standard.
From the decision · page 2Although the decision contains a finding that is final, the petitioner is only challenging an interlocutory finding/order in the decision regarding the adequacy of the Medical Provider Network (MPN). Therefore, we will apply the removal standard to our review. (See Gaona, supra.)
The petitioner failed to show that significant prejudice or irreparable harm would result if removal was not granted.
Favours Defendant prevailed
Without showing significant prejudice or irreparable harm, the extraordinary remedy of removal was not justified.
From the decision · page 2Removal 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 the Petition is denied.
The WCJ's analysis of the merits of the petitioner's arguments did not persuade the Appeals Board that removal was warranted.
Favours Defendant prevailed
The Appeals Board relied on the WCJ's analysis to deny the petition for removal.
From the decision · page 2Removal 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 the Petition is denied.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
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 rarely exercised by the Appeals Board; removal granted only if significant prejudice or irreparable harm will result and reconsideration is inadequate.
The Appeals Board applied this standard to deny the petition for removal, finding no significant prejudice or irreparable harm and that reconsideration would be an adequate remedy.
From the decision · page 2Removal 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 the Petition is denied.
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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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