ADJ17888876 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed and Petition for Removal denied

Petition for Reconsideration and Petition for Removal filed by applicant challenging an Order Granting Change of Venue issued by the PWCJ on July 28, 2023

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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 changing venue was an interlocutory procedural order, not a final order, so reconsideration was dismissed. Removal was denied because the applicant did not show substantial prejudice or irreparable harm and reconsideration would be an adequate remedy if a final adverse decision is issued.

From the decision · page 2DISCUSSION 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. 45 ["[t]he term [`final'] does not

The facts that decided it

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

The order changing venue was an interlocutory procedural order that did not determine any substantive right or threshold issue.

Favours Defendant prevailed

Because it was not a final order, the petition for reconsideration was dismissed.

From the decision · page 3Here, the WCJ's decision solely resolves an intermediate procedural or evidentiary issue or issues. The decision does not determine any substantive right or liability and does not determine a threshold issue. Accordingly, it is not a "final" decision, and the petition will be dismissed to the extent it seeks reconsideration.

Defendant filed a timely Petition to Transfer Venue pursuant to Labor Code section 5501.5(a)(2) and WCAB Rule 10488.

Favours Defendant prevailed

The statute mandates venue transfer to the county where the injury occurred when the employee resides out of state, making the venue change proper.

From the decision · page 3Here, defendant filed a timely Petition to Transfer Venue pursuant to Labor Code section 5501.5(a)(2) and WCAB Rule 10488 (Cal. Code Regs., tit. 8, § 10488). As noted above, the language of the statute mandates that upon objection the venue must be transferred to the employee's county of residence or the county where the injury occurred. (Lab. Code, § 5501.5(c) [emphasis added].) Here, applicant resides out of state, thus venue is proper in the county where the injury allegedly occurred. The claimed injury occurred in Los Gatos, which is in Santa Clara county and is serviced by the San Jose district office. In response to the Petition, the WCJ issued the mandated Order for Change of Venue from the San Diego office to the San Jose office.

Applicant did not show substantial prejudice or irreparable harm from the venue change.

Favours Defendant prevailed

Without such showing, removal is not warranted and reconsideration is an adequate remedy if a final adverse decision is issued.

From the decision · page 4Thus, 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.

Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068; Labor Code sections 5900(a), 5902, 5903

A petition for reconsideration may only be taken from a final order, decision, or award; interlocutory procedural orders are not final.

The order changing venue was an interlocutory procedural order, not a final order, so reconsideration was dismissed.

From the decision · page 2DISCUSSION 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. 45 ["[t]he term [`final'] does not

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 granted only if substantial prejudice or irreparable harm will result if removal is not granted, and reconsideration is not an adequate remedy.

Removal was denied because the applicant did not show substantial prejudice or irreparable harm and reconsideration would be an adequate remedy if a final adverse decision is issued.

From the decision · page 3As discussed below, 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, 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).)

ADJ17888876 · September 29, 2023

What the panel ordered

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The facts that decided it

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