ADJ12076053 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed; Petition for Removal granted to amend F&O to defer statute of limitations issue; F&O otherwise affirmed

Petition for Reconsideration and Petition for Removal filed by defendant after WCJ's Amended Joint Findings and Order on November 12, 2020

Read the official decision →

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 / removalMixed

The WCJ's order was interlocutory and not final, so reconsideration was dismissed; removal was granted to amend the order to defer the statute of limitations issue because reconsideration was not an adequate remedy and substantial prejudice would result without removal.

From the decision · page 1We have considered the allegations of defendant's Petition for Reconsideration of the Amended Joint Findings and Order (F&O) issued by the workers' compensation administrative law judge (WCJ) on November 12, 2020, applicant's answer and the contents of the WCJ's Report with respect thereto. Based on our review of the record and for the reasons discussed below, we will dismiss the Petition to the extent it seeks reconsideration, grant the Petition to the extent it seeks removal and amend the F&O to add an order deferring the issue of the statute of limitations. The F&O will otherwise be affirmed.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, §§ 5900(a), 5902, 5903

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

The WCJ's order was interlocutory and not final, so reconsideration was dismissed.

From the decision · page 1A 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].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p. 1075 ["interim orders,

Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a)

Removal is granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is not an adequate remedy.

Removal was granted to amend the F&O to defer the statute of limitations issue because reconsideration was not an adequate remedy and substantial prejudice would result without 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 substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).)

ADJ12076053 · February 5, 2021

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

The rules the panel named

About this page