ADJ10575813 · May 13, 2022

The WCJ found that the June 4, 2019 Findings and Award found injury arising out of and occurring in the course of employment (AOE/COE) in the form of dehydration, establishing jurisdiction to consider the Petition to Reopen.

From the decision · page 2Here, the WCJ's decision includes a finding regarding the threshold issue of jurisdiction in Findings of Fact number 1. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal. Moreover, although petitioner does not explicitly challenge Finding of Fact number 1, we are persuaded that defendant is in fact challenging the WCAB's jurisdiction to consider applicant's Petition for Reopen. In its petition, defendant asserts "because there was no original injury, there are no grounds to file a Petition to Reopen for New and Further injury." (Petition for Reconsideration, at p. 5:12-13.) We interpret this assertion as a challenge of the Appeals Board's jurisdiction. However, for the reasons stated in the Report, we agree with the WCJ that the June 4, 2019 Findings and Award found injury arising out of and occurring in the course of employment (AOE/COE) in the form of dehydration and, because there was a finding of industrial injury, the WCJ had jurisdiction to consider applicant's Petition to Reopen.

The petition for reconsideration was premature as the discovery order was interlocutory, and removal was denied as no irreparable harm was shown and discovery and trial were adequate remedies.

From the decision · page 7Since it would appear that authority exists for the decision to be interpreted as one finding injury and for sending the applicant back to the PQME, the question then becomes whether the defendant's Petition is one for reconsideration or for removal. In deciding this, one would consider whether the decision to allow discovery on a Petition to Reopen is a final order or an interlocutory order. Here, the undersigned did not enter a new judgment but simply interpreted the old one to mean that applicant was entitled to go back to the PQME to determine if his condition has worsened. Here, since the undersigned does not enter a new judgment, the Findings and Order of 23 February 2022 was an interlocutory discovery order. Thus, reconsideration of this case is premature and should be dismissed.

The applicant filed a timely Petition to Reopen within five years of the injury date, and the prior decision was interpreted as finding an industrial injury, allowing reopening for new and further injury.

From the decision · page 6Having established an injury is found or implied to be found in the Award, the next step is to determine whether the applicant may pursue a Petition to Reopen. Here, there are two statutes that provide for such a Petition: either Labor Code § 5410 or Labor Code § 5803. Either of these Labor Code sections may apply in this case but the key is whether the applicant filed a Petition to Reopen within five years of the date of injury. Here the applicant's injury occurred on 17 August 2016 and he filed his Petition on 10 August 2021. Thus, the Petition to Reopen is timely.

The June 4, 2019 Findings and Award found injury arising out of and occurring in the course of employment in the form of dehydration.

Favours Applicant prevailed

This finding established jurisdiction for the WCJ to consider the Petition to Reopen.

From the decision · page 2Here, the WCJ's decision includes a finding regarding the threshold issue of jurisdiction in Findings of Fact number 1. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal. Moreover, although petitioner does not explicitly challenge Finding of Fact number 1, we are persuaded that defendant is in fact challenging the WCAB's jurisdiction to consider applicant's Petition for Reopen. In its petition, defendant asserts "because there was no original injury, there are no grounds to file a Petition to Reopen for New and Further injury." (Petition for Reconsideration, at p. 5:12-13.) We interpret this assertion as a challenge of the Appeals Board's jurisdiction. However, for the reasons stated in the Report, we agree with the WCJ that the June 4, 2019 Findings and Award found injury arising out of and occurring in the course of employment (AOE/COE) in the form of dehydration and, because there was a finding of industrial injury, the WCJ had jurisdiction to consider applicant's Petition to Reopen.

Applicant filed a timely Petition to Reopen within five years of the injury date.

Favours Applicant prevailed

This made the Petition to Reopen timely and allowed reopening for new and further injury.

From the decision · page 6Having established an injury is found or implied to be found in the Award, the next step is to determine whether the applicant may pursue a Petition to Reopen. Here, there are two statutes that provide for such a Petition: either Labor Code § 5410 or Labor Code § 5803. Either of these Labor Code sections may apply in this case but the key is whether the applicant filed a Petition to Reopen within five years of the date of injury. Here the applicant's injury occurred on 17 August 2016 and he filed his Petition on 10 August 2021. Thus, the Petition to Reopen is timely.

The discovery order on the Petition to Reopen was interlocutory, not a new judgment.

Favours Defendant prevailed

This made the Petition for Reconsideration premature and led to its denial.

From the decision · page 7Since it would appear that authority exists for the decision to be interpreted as one finding injury and for sending the applicant back to the PQME, the question then becomes whether the defendant's Petition is one for reconsideration or for removal. In deciding this, one would consider whether the decision to allow discovery on a Petition to Reopen is a final order or an interlocutory order. Here, the undersigned did not enter a new judgment but simply interpreted the old one to mean that applicant was entitled to go back to the PQME to determine if his condition has worsened. Here, since the undersigned does not enter a new judgment, the Findings and Order of 23 February 2022 was an interlocutory discovery order. Thus, reconsideration of this case is premature and should be dismissed.

Found no evidence of residuals of an industrial injury involving upper extremities.

His opinion supported the finding that no injury to upper extremities was sustained.

From the decision · page 4The parties then proceeded to use the panel qualified medical evaluation (PQME) process to select PQME's in orthopedic surgery (See Exhibit "F") and Internal Medicine (Exhibits "G," "H" and "I.") The Orthopedic PQME, Dr. Theodore Georgis, found "no evidence of residuals of an

Found no evidence of a heart condition; dehydration incident was industrial; temporary total disability of two days; heart condition not industrial.

His opinion supported the finding of an industrial dehydration incident and no heart injury.

From the decision · page 5industrial injury involving his upper extremities." Dr. Grodan, the internal medicine doctor, specializing in cardiovascular ailments, found no evidence of a heart condition and concluded that applicant had suffered an incident involving dehydration, was entitled to no more than two days of temporary total disability and while he did have a heart condition and hypertension, the former was not clinically significant and the latter was not industrial.

Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783

A decision including resolution of a threshold issue is a final decision subject to reconsideration (Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783)

The WCJ treated the defendant's petition as a petition for reconsideration because the decision resolved a threshold issue of jurisdiction.

From the decision · page 1We do not adopt and incorporate the WCJ's recommendation that we dismiss reconsideration. Rather, we will treat defendant's petition as one seeking reconsideration. If a decision includes resolution of a "threshold" issue, then it is a "final" decision, whether or not all issues are resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc).) Threshold issues include, but are not limited to, the following: injury arising out of and in the course of employment, 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].) 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.

Lab. Code, § 5904

Failure to timely petition for reconsideration bars later challenge to the propriety of the decision (Lab. Code, § 5904)

The WCJ noted that failure to timely petition for reconsideration bars later challenge to the decision before the WCAB or court of appeal.

From the decision · page 1We do not adopt and incorporate the WCJ's recommendation that we dismiss reconsideration. Rather, we will treat defendant's petition as one seeking reconsideration. If a decision includes resolution of a "threshold" issue, then it is a "final" decision, whether or not all issues are resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc).) Threshold issues include, but are not limited to, the following: injury arising out of and in the course of employment, 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].) 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.

Qualified Medical Evaluators' opinions

From the decision · page 5industrial injury involving his upper extremities." Dr. Grodan, the internal medicine doctor, specializing in cardiovascular ailments, found no evidence of a heart condition and concluded that applicant had suffered an incident involving dehydration, was entitled to no more than two days of temporary total disability and while he did have a heart condition and hypertension, the former was not clinically significant and the latter was not industrial.