Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, 5904
Petition for reconsideration must be timely and address final decisions; failure to timely petition bars later challenge.
Applied to bar the petition as untimely and improper.
From the decision · page 1If 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.
Cal. Code Regs., tit. 8, 10955(a)
Removal is an extraordinary remedy granted only if significant prejudice or irreparable harm will result if removal is not granted.
Applied to deny removal as petitioner failed to show significant prejudice or irreparable harm.
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, 5813; Cal. Code Regs., tit. 8, 10421
Sanctions may be imposed for bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.
Applied to admonish applicant's attorney for filing a frivolous petition and warn of possible sanctions.
From the decision · page 3Section 5813 allows for "any reasonable expenses, including attorney's fees and costs,
incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely
intended to cause unnecessary delay." (Lab. Code, § 5813.) Bad-faith actions or tactics that are
frivolous or solely intended to cause unnecessary delay include "actions or tactics that result from
a willful failure to comply with a statutory or regulatory obligation, that result from a willful intent
to disrupt or delay the proceedings of the Workers' Compensation Appeals Board, or that are done
for an improper motive or are indisputably without merit." (Cal. Code Regs., tit. 8, § 10421.)
Therefore, we admonish applicant's attorney Fletcher Brown and remind him that such conduct
could subject the offending party to sanctions.