ADJ3211105 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed; Petition for Removal denied

Petition for Reconsideration of Order Taking Off Calendar issued by WCJ on January 18, 2024

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 January 18, 2024 order taking the matter off calendar was interlocutory and not a final order; removal was denied because petitioner did not show substantial prejudice or irreparable harm and reconsideration was an adequate remedy.

From the decision · page 4DISCUSSION A petition for reconsideration may only be taken from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.2) 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].) Threshold issues include, but are not limited to, the following: injury AOE/COE, jurisdiction, the existence of an employment relationship, and statute 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].) Here, the January 18, 2024 minute order taking the matter off calendar is not a final order. Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders.

The facts that decided it

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

The January 18, 2024 order taking the matter off calendar was interlocutory and not a final order.

Favours Defendant prevailed

Because a petition for reconsideration may only be taken from a final order, the petition was dismissed.

From the decision · page 4DISCUSSION A petition for reconsideration may only be taken from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.2) 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].) Threshold issues include, but are not limited to, the following: injury AOE/COE, jurisdiction, the existence of an employment relationship, and statute 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].) Here, the January 18, 2024 minute order taking the matter off calendar is not a final order. Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders.

The issue of how to split attorneys' fees was already set for trial when applicant's attorney requested a status conference on the same issue.

Favours Defendant prevailed

This showed no substantial prejudice or irreparable harm from denying removal.

From the decision · page 5tit. 8, § 10955(a); Cortez, supra; Kleemann, supra.) Additionally, 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, the issue of how to split attorneys' fees was already set for trial when applicant's attorney requested a status conference on the same issue. 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 WCJ will not issue an order to release disputed attorney fees as the defendant disputes the release and the issue is contested and set for trial.

Favours Defendant prevailed

This justified denying the petition for removal and dismissing reconsideration.

The rules the panel named

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

Lab. Code, §§ 5900(a), 5902, 5903.2

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

The January 18, 2024 order taking the matter off calendar was not a final order and thus not subject to reconsideration.

From the decision · page 4DISCUSSION A petition for reconsideration may only be taken from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.2) 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].) Threshold issues include, but are not limited to, the following: injury AOE/COE, jurisdiction, the existence of an employment relationship, and statute 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].) Here, the January 18, 2024 minute order taking the matter off calendar is not a final order. Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders.

Cal. Code Regs., tit. 8, § 10955(a)

Removal is an extraordinary remedy rarely exercised by the Appeals Board and will be granted only if the petitioner shows substantial prejudice or irreparable harm and that reconsideration will not be an adequate remedy.

Removal was denied because petitioner did not show substantial prejudice or irreparable harm and reconsideration was an adequate remedy.

From the decision · page 4(Maranian, supra, at 1075 ("interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not `final'"); Rymer, supra, at 1180 ("[t]he term [`final'] does not include intermediate procedural orders or discovery orders"); Kramer, supra, at 45 ("[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. As the WCJ notes in the Report, petitioner is challenging an interlocutory issue. Thus, we will dismiss it as a petition for reconsideration and treat it as one for 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.,

ADJ3211105 · April 15, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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