ADJ10805554 · September 12, 2025

The petition was denied because the Appeals Board acted timely on the petition and found no significant prejudice or irreparable harm to justify removal. The NIT issue remains with the WCJ.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the WCJ with respect thereto. Based on our review of the record, we will deny the Petition as one seeking reconsideration.

The case was transmitted to the Appeals Board on July 18, 2025, and the Board acted on the petition by September 16, 2025, within the 60-day period required by Labor Code section 5909.

Favours Defendant prevailed

This made the petition timely and subject to denial on the merits rather than dismissal for untimeliness.

From the decision · page 2(2) For purposes of paragraph (1), service of the accompanying report, pursuant to subdivision (b) of Section 5900, shall constitute providing notice. Under section 5909(a), the Appeals Board must act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board. Transmission is reflected in Events in the Electronic Adjudication Management System (EAMS). Specifically, in Case Events, under Event Description is the phrase "Sent to Recon" and under Additional Information is the phrase "The case is sent to the Recon board." Here, according to Events, the case was transmitted to the Appeals Board on July 18, 2025 and 60 days from the date of transmission is September 16, 2025.

The WCJ's decision included final findings on threshold issues and permanent disability liability, making it a final order subject to reconsideration.

Favours Defendant prevailed

This established the jurisdiction of the Appeals Board to consider the petition for reconsideration.

From the decision · page 4Here, the WCJ's decision includes a finding regarding threshold issues, namely, injury arising out of and in the course of employment, parts of body injured, and the existence of an employment relationship. It also includes a final finding as to defendant's liability to pay permanent disability and awards payment of that permanent disability. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal.

The challenged order to set aside the August 16, 2024 Award was interlocutory, not final, so removal standard applied and no significant prejudice or irreparable harm was found.

Favours Defendant prevailed

This justified denial of removal and denial of the petition for reconsideration on this ground.

From the decision · page 4Defendant challenges the WCJ's decision to set aside the August 16, 2024 Award approving the Stipulations of the parties, as well as the WCJ's NIT. The order to set aside the Award of August 16, 2024 is an interlocutory finding because it is not a "final" decision as to defendant's liability to pay benefits. (Maranian, supra, 81 Cal.App.4th at p. 1075.) Thus, although the F,A&O contains findings that are final, defendant is only challenging an interlocutory finding/order therein. Therefore, we will apply the removal standard to our review. (See Gaona, supra.)

Labor Code section 5909

A petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.

The Appeals Board acted on the petition within the 60-day period, making the petition timely.

From the decision · page 2I. Preliminarily, we note that 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:

Labor Code sections 5900, 5902, 5903

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

The WCJ's decision included final findings subject to reconsideration, but the challenged order to set aside the August 16, 2024 Award was interlocutory and reviewed under the removal standard.

From the decision · page 3II. A petition for reconsideration may properly be taken only from a "final" order, decision, or 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].) 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.