ADJ19199519 — California WCAB decision

What the panel ordered

Petition for reconsideration dismissed as premature; petition for removal granted; WCJ order denying joinder rescinded and matter returned to trial level.

SISF petitioned for reconsideration and/or removal of a WCJ order denying joinder; the Board treated the petition as one for removal.

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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.

Jurisdiction / venueRemanded

SISF steps into the shoes of the insolvent self-insured employer and need not be formally joined as a separate party defendant; denial of joinder was a non-final order and due process required a hearing or notice before denial.

From the decision · page 2While a WCJ is empowered to join additional parties necessary for the full adjudication of the case at any time, [Labor Code § 5307.5(b); Cal. Code Regs., tit. 8, § 10380] the California Self-Insurers' Security Fund, much like the California Insurance Guarantee Association, rather than functioning as a party defendant separate and distinct from the exiting insolvent self-insured employer, steps in the shoes of that employer and assumes its liability, thereby negating the judicial requirement of a formal joinder as a party defendant. In addition, to require its joinder in every case involving a liquidated self-insured employer places an exceptional burden on already overwhelmed limited judicial resources and frustrates its essentially constitutional purpose of providing expeditious delivery and resolution of litigated workers' compensation cases.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code §§ 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Maranian v. WCAB (2000) 81 Cal.App.4th 1068

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

Denial of joinder is a pre-trial, non-final order, so reconsideration is not available; removal is the proper remedy.

From the decision · page 4II. 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.

Cal. Code Regs., tit. 8, § 10843(a); Cortez v. WCAB (2006) 136 Cal.App.4th 596; Kleemann v. WCAB (2005) 127 Cal.App.4th 274

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

Removal granted because due process was denied by summary denial of joinder without hearing or notice.

From the decision · page 5shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10843(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must

Labor Code § 3743

SISF assumes the obligations of an insolvent self-insurer and is a party in interest in all proceedings involving claims against the insolvent employer.

SISF need not be formally joined as a separate party defendant; it steps into the shoes of the insolvent employer.

From the decision · page 5(a) Upon order of the director pursuant to Section 3701.5, the fund shall assume the workers' compensation obligations of an insolvent self-insurer. (b) Notwithstanding subdivision (a), the fund shall not be liable for the payment of any penalties assessed for any act or omission on the part of any person other than the fund, including, but not limited to, the penalties provided in Section 132a, 3706, 4553, 4554, 4556, 4557, 4558, 4601.5, 5814, or 5814.1. (c) The fund shall be a party in interest in all proceedings involving compensation claims against an insolvent self-insurer whose compensation obligations have been paid or assumed by the fund. The fund shall have the same rights and defenses as the insolvent self-insurer, including, but not limited to, all of the following: (1) To appear, defend, and appeal claims. (2) To receive notice of, investigate, adjust, compromise, settle, and pay claims. (3) To investigate, handle, and deny claims.

ADJ19199519 · February 18, 2025

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