ADJ18844740 · November 22, 2024

The WCJ's order was not a final order, so reconsideration was not proper; the WCJ lacked authority to rescind the order after jurisdiction transferred to the Appeals Board; the Board rescinded both orders to clarify the record.

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 WCJ's decision solely resolves an intermediate evidentiary / discovery issue. 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. As we made clear in our En Banc decision in Ledezma v. Kareem Cart Commissary and Mfg, (2024) 89 Cal. Comp. Cases 462, 475-476 (En Banc), and further emphasized in our Significant Panel Decision in Reed v. County of San Bernardino (2024) 89 Cal.Comp.Cases ___;

The WCJ's order resolved only an intermediate evidentiary/discovery issue and did not determine any substantive right or threshold issue.

Favours Defendant prevailed

This meant the order was not final and not subject to reconsideration, leading to dismissal of the petition for reconsideration.

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 WCJ's decision solely resolves an intermediate evidentiary / discovery issue. 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. As we made clear in our En Banc decision in Ledezma v. Kareem Cart Commissary and Mfg, (2024) 89 Cal. Comp. Cases 462, 475-476 (En Banc), and further emphasized in our Significant Panel Decision in Reed v. County of San Bernardino (2024) 89 Cal.Comp.Cases ___;

The WCJ issued a second order rescinding the first after jurisdiction had transferred to the Appeals Board (more than 15 days after petition filed).

Favours Defendant prevailed

The WCJ lacked authority to issue the order, so both orders were rescinded by the Board.

From the decision · page 5Consequently, if the order, decision or award is rescinded pursuant to subdivision (b) or subdivision (c) within the 15-day period wherein the WCJ retains jurisdiction, the original petition is deemed moot because the order, decision or award that is the subject of the petition no longer exists. However, here, the Petition for Reconsideration was filed on August 19, 2024, and 15 days from that date is September 3, 2024. The WCJ's second Order issued on September 23, 2024, thus, the WCJ was without authority to issue the order. Therefore, we will rescind the July 26, 2024 and the September 23, 2023 Orders, so that the record is clear.

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

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

The WCJ's order was not a final order, so reconsideration was not proper.

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.

Cal. Code Regs., tit. 8, § 10961

After 15 days from the filing of a petition for reconsideration, a WCJ shall not issue any order in the case until the Appeals Board has acted.

The WCJ issued an order after the 15-day period, so it was without authority.

From the decision · page 5decision or award, and a new petition for reconsideration must be filed in response to the amended order, decision or award (Cal. Code Regs., tit. 8, § 10961(c)). However, "[a]fter 15 days have elapsed from the filing of a petition for reconsideration, a workers' compensation judge shall not issue any order in the case until the Appeals Board has denied or dismissed the petition for reconsideration or issued a decision after reconsideration."

Lab. 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 issued its decision within the 60-day period after transmission.

From the decision · page 2(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.