ADJ11877438 · March 28, 2025

The petition sought reconsideration of an interlocutory procedural order, which is not final and thus not subject to reconsideration; the petition was dismissed and treated as a removal petition, which was denied because no substantial prejudice or irreparable harm was shown.

From the decision · page 1Defendant seeks reconsideration of the Joint Findings and Order (F&O), issued by the workers' compensation administrative law judge (WCJ) on January 3, 2025, wherein the WCJ found in pertinent part that there is good cause to order development of the record and there is good cause to order an additional panel in internal medicine.

The WCJ's order for additional panel in internal medicine is an interlocutory procedural order, not a final order.

Favours Defendant prevailed

Such orders are not subject to reconsideration under Labor Code section 5909 and related case law, leading to dismissal of the petition.

From the decision · page 1Defendant seeks reconsideration of the Joint Findings and Order (F&O), issued by the workers' compensation administrative law judge (WCJ) on January 3, 2025, wherein the WCJ found in pertinent part that there is good cause to order development of the record and there is good cause to order an additional panel in internal medicine.

No substantial prejudice or irreparable harm shown by defendant to justify removal.

Favours Defendant prevailed

Without such showing, removal petition is denied, affirming the WCJ's procedural order.

From the decision · page 7Removal 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, 10955(a); Cortez, supra; Kleemann, supra.) Additionally, 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).)

Opined industrial causation and permanent and stationary status for orthopedic conditions; did not opine on non-orthopedic conditions such as diabetes or psychological injury; recommended referral to other specialists for those conditions.

Dr. Nair's opinions were limited to orthopedic conditions and did not address other claimed conditions; the Appeals Board found his opinions not substantial evidence for non-orthopedic conditions.

From the decision · page 2BACKGROUND We will briefly review the relevant facts. In case number ADJ11877438, applicant claimed injury to various body parts, including low back, psyche, diabetes, upper extremities, lower extremities, neck, and spine, while employed by defendant as an automobile mechanic, during the period from December 26, 2017 to January 16, 2019 or 2020. In case number ADJ11877439, applicant claimed injury to various body parts, including low back and upper extremities, while employed by defendant as an automobile mechanic, on March 10, 2018. Applicant was evaluated by Mohan Nair, M.D., panel Qualified Medical Evaluator (QME) in the specialty of pain management, who issued reports on September 30, 2022 (Exhibit Z), June 8, 2023 (Exhibit Y), September 19, 2023 (Exhibit X), and January 9, 2024 (Exhibit Y). Dr. Nair's opinions regarding impairment, work restrictions, if any, and whether applicant has reached maximum medical improvement, are limited to orthopedic conditions. Dr.

Lab. Code, §§ 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068; Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658

A petition for reconsideration may only be taken from a final order, decision, or award; interlocutory procedural or evidentiary decisions are not final and not subject to reconsideration.

The petition sought reconsideration of an interlocutory procedural order, which is not final and thus not subject to reconsideration; therefore, the petition was dismissed.

From the decision · page 4II. 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" or determines a "threshold" issue that is fundamental to the claim for benefits. (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]; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Threshold issues include, but are not limited to, the following: injury AOE/COE,

Ledezma v. Kareem Cart Commissary and Mfg. (2024) 89 Cal.Comp.Cases 549 (Appeals Bd. en banc); Cal. Code Regs., tit. 8, § 10955(a)

The petition for removal is the proper method to seek review of interlocutory orders; removal is granted only if substantial prejudice or irreparable harm is shown and reconsideration is inadequate.

The petition was treated as one for removal and denied because no substantial prejudice or irreparable harm was shown.

From the decision · page 6The recent en banc decision issued by the Appeals Board2 in Ledezma v. Kareem Cart Commissary and Mfg. (2024) 89 Cal.Comp.Cases 549 (Appeals Bd. en banc), affirmed that filing petitions for reconsideration on interlocutory orders may be considered "frivolous and filed for the purposes of delay in violation of section 5813 and WCAB Rule 10421." (Id., at 555.) "The petition for removal is the method to seek review of interlocutory orders, those orders that do not rise to

Dr. Nair's medical opinions limited to orthopedic conditions and did not address diabetes or psychological injury; no substantial evidence for non-orthopedic conditions.

From the decision · page 5Here, Dr. Nair did not opine as to all of applicant's claimed body parts. Dr. Nair's opinions regarding industrial causation are limited to applicant's orthopedic conditions. Dr. Nair recommends that "[d]iabetic neuropathy contributing to central pain should be ruled out. Patients with diabetes can develop focal and multifocal neuropathies." (Exhibit Z: QME report of Dr. Nair, dated September 30, 2022, p. 27.) However, he offers no opinion as to whether applicant's diabetes or high blood pressure are industrial, essentially deferring to a doctor in a different specialty. Dr. Nair also notes that "Referral to a psychologist/psychiatrist would be helpful." (Exhibit Z: QME report of Dr. Nair, dated September 30, 2022, p. 31.)