ADJ19677464 · February 21, 2025

The petition for reconsideration was denied because it was timely acted upon within the 60-day period from the date of transmission to the Appeals Board, and the petitioner failed to show significant prejudice or irreparable harm to justify removal.

From the decision · page 1We have considered the allegations of the Petition for Removal 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 case was transmitted to the Appeals Board on December 23, 2024, and the petition for reconsideration was timely acted upon within 60 days on February 21, 2025.

Favours Defendant prevailed

This established that the petition was timely under Labor Code section 5909, supporting denial of the petition.

From the decision · page 2Here, according to Events, the case was transmitted to the Appeals Board on December 23, 2024, and 60 days from the date of transmission is February 21, 2025. This decision is issued by or on February 21, 2025, so that we have timely acted on the petition as required by section 5909(a).

The petitioner failed to demonstrate significant prejudice or irreparable harm if removal was denied, and that reconsideration would not be an adequate remedy.

Favours Defendant prevailed

This justified denial of the petition for removal as an extraordinary remedy.

From the decision · page 3Removal 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 removal is denied and/or that reconsideration will not be an adequate remedy.

Labor Code section 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.

Applied to determine timeliness of petition for reconsideration.

From the decision · page 1I. Preliminarily, we note that former Labor Code1 section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:

Labor Code section 5904

Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal.

Applied to bar late challenges to final decisions.

From the decision · page 3statute of limitations issues. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal. (See Lab. Code, § 5904.) Alternatively, non-final decisions may later be challenged by a petition for reconsideration once a final decision issues.

Cal. Code Regs., tit. 8, 10955(a)

Removal is an extraordinary remedy granted only if significant prejudice or irreparable harm will result if removal is not granted, and reconsideration will not be an adequate remedy.

Applied to evaluate petitioner's request for removal.

From the decision · page 3Removal 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 removal is denied and/or that reconsideration will not be an adequate remedy.