ADJ17947769 · October 27, 2023

The petition was dismissed because the WCJ's order was not a final decision and did not determine any substantive right or threshold issue; removal was denied because petitioner did not show substantial prejudice or irreparable harm.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration/Removal1 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 petitioner's arguments in the WCJ's report, we will dismiss the petition to the extent it seeks reconsideration and deny it to the extent it seeks removal.

The WCJ's order setting the matter for a status conference and deferring the issue of applicant's deposition notice resolved only an intermediate procedural or evidentiary issue.

Favours Defendant prevailed

Because it did not determine any substantive right or threshold issue, it was not a final decision, leading to dismissal of the petition for reconsideration.

From the decision · page 2Here, the WCJ's Order setting the matter for a status conference and deferring the issue of applicant's deposition notice 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.

Petitioner failed to show that substantial prejudice or irreparable harm would result if removal was denied, and that reconsideration would not be an adequate remedy.

Favours Defendant prevailed

This failure led to denial of the petition for removal.

From the decision · page 2We 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).) 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.

Lab. Code, §§ 5900(a), 5902, 5903

A petition for reconsideration may only be taken from a 'final' order, decision, or award.

The WCJ's order was interlocutory and did not determine any substantive right or threshold issue, so it was not final.

From the decision · page 1A 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.

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, and reconsideration is not an adequate remedy.

Petitioner did not demonstrate substantial prejudice or irreparable harm, nor that reconsideration would be inadequate, so removal was denied.

From the decision · page 2We 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).) 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.