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 significant prejudice or irreparable harm if removal is not granted, and that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues.
The Appeals Board applied this standard and found the petitioner did not meet the burden to justify removal.
From the decision · page 2Removal 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.
Lab. Code, 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.
The Appeals Board noted this statute in its analysis of the finality of the WCJ's decision.
From the decision · page 1Preliminarily, we observe that 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.