ADJ12629307 — California WCAB decision

What the panel ordered

Petition for Reconsideration is dismissed and Petition for Removal is denied.

Defendant seeks reconsideration of the Opinion and Decision After Reconsideration issued by the Appeals Board on March 4, 2022, which granted applicant's Petition for Reconsideration and returned the matter to trial level for record development.

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This docket was decided more than once. Shown here is the latest released decision; we also hold March 4, 2022.

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 / removalDefendant prevailed

The prior Opinion was interlocutory and not a final order, thus the petition for reconsideration was dismissed; removal was denied as petitioner failed to show irreparable harm or undue prejudice.

From the decision · page 2A 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.

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 properly be taken only from a "final" order, decision, or award.

The prior Opinion was interlocutory and not a final order, so the petition for reconsideration was dismissed.

From the decision · page 2A 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.

Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312

The Appeals Board is the ultimate finder of fact and may resolve conflicts, make credibility determinations, and reject WCJ findings on reconsideration.

The Appeals Board exercised its broad authority to require further development of the record despite WCJ credibility findings.

From the decision · page 3We disagree. The Appeals Board is the ultimate finder of fact. (Lab. Code, § 5907, 5953.) On reconsideration, "the board is empowered to resolve conflicts in the evidence [citations], to make its own credibility determinations [citations], and... to reject the findings of the [WCJ] and enter its own findings on the basis of its review of the record." (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; accord: Lamb v. Workers' Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280§ 281 [39 Cal.Comp.Cases 310].) On reconsideration, the Appeals Board has "considerable discretion" and "enjoys broad authority" (Redner v. Workmen's Comp. Appeals Bd. (1971) 5 Cal.3d 83, 92 [36 Cal.Comp.Cases 371]) and it can "redetermine the case upon the existing record" and take a "different view of the same evidence" than the WCJ. (Argonaut Ins. Exchange v. Industrial Acc. Com. (Bellinger) (1958) 49 Cal.2d 706, 709§ 712 [23 Cal.Comp.Cases 34].)

Cal. Code Regs., tit. 8, 10955(a)

Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result if removal is not granted.

Removal was denied as petitioner failed to demonstrate irreparable harm or undue prejudice.

From the decision · page 2We will also deny the petition to the extent it seeks removal. Removal 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); see also Cortez, supra; Kleemann,

ADJ12629307 · May 23, 2022

What the panel ordered

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