ADJ7244272 — California WCAB decision

What the panel ordered

Petition for Reconsideration/Removal is denied.

Petition for reconsideration/removal of a WCJ decision including threshold issues (employment and AOE/COE); Board reviewed the WCJ's report and denied the petition.

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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.

Reconsideration / removalDefendant prevailed

The WCJ's decision included threshold issues making it final and subject to reconsideration, but the petitioner only challenged interlocutory findings. The Board found no significant prejudice or irreparable harm and that reconsideration would be an adequate remedy, so the petition was denied.

From the decision · page 3Here, the WCJ's decision includes a finding regarding threshold issues including employment and injury arising out of and occurring in the course of employment (AOE/COE). Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal.

The facts that decided it

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

The rules the panel named

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 acted upon within 60 days from the date a trial judge transmits a case to the appeals board. Notice of transmission is provided by service of the WCJ's report.

Applied to determine timeliness and notice requirements for the petition.

From the decision · page 1I. 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: (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.

Cal. Code Regs., tit. 8, § 10955(a); Cortez v. WCAB; Kleemann v. WCAB

Removal is an extraordinary remedy rarely exercised; granted only if significant prejudice or irreparable harm will result and reconsideration is not an adequate remedy.

Applied to deny removal as petitioner did not show significant prejudice or irreparable harm, nor that reconsideration would be inadequate.

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. Therefore, we will deny the Petition as one seeking reconsideration.

ADJ7244272 · January 7, 2025

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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