Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
A petition for reconsideration is deemed denied unless the Appeals Board acts within 60 days of filing (Lab. Code, § 5909).
The Appeals Board's failure to act within 60 days was due to procedural error, and the time was tolled.
From the decision · page 1Preliminarily, Labor Code section 5909 provides that a petition for reconsideration is
deemed denied unless the Appeals Board acts on the petition within 60 days of filing. (Lab. Code,
§ 5909.) However, "it is a fundamental principle of due process that a party may not be deprived
of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7
Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied
applicant's petition for reconsideration because the Appeals Board had not acted on the petition
within the statutory time limits of Labor Code section 5909. The Appeals Board did not act on
applicant's petition because it had misplaced the file, through no fault of the parties. The Court of
Appeal reversed the Appeals Board's decision holding that the time to act on applicant's petition
was tolled during the period that the file was misplaced. (Id. at p. 1108.)
Labor Code sections 5900(a), 5902, 5903
A petition for reconsideration may only be taken from a final order, decision, or award, which determines substantive rights or threshold issues (Lab. Code, §§ 5900(a), 5902, 5903).
The WCJ's decision resolved only procedural or evidentiary issues and was not final.
From the decision · page 2or 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. 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.
California Code of Regulations, title 8, former section 10843(a), now section 10955(a)
Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result and reconsideration is not an adequate remedy (Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a)).
The petitioner did not demonstrate substantial prejudice or irreparable harm, nor that reconsideration would be inadequate.
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, former § 10843(a), now § 10955(a) (eff. Jan. 1,
2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).)