ADJ13473354 · May 4, 2021

The WCJ's decision included a threshold issue making it a final order subject to reconsideration rather than removal, and the defendant's petition did not show significant prejudice or irreparable harm to warrant removal.

From the decision · page 1We have considered the allegations of defendant's Petition for Reconsideration/Removal, applicant's answer and the contents of the Report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record and for the reasons discussed below, we will deny the Petition as one seeking reconsideration.

The WCJ's decision included a threshold issue making it a final order subject to reconsideration rather than removal.

Favours Defendant prevailed

This made the defendant's petition for removal improper and subject to denial.

From the decision · page 1Defendant sought reconsideration or in the alternative removal of the Findings and Award, Order Vacating Order of Submission and Opinion on Decision. 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 (AOE/COE), 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.

The defendant did not demonstrate significant prejudice or irreparable harm if removal was denied.

Favours Defendant prevailed

Without such a showing, removal is not warranted and reconsideration remains an adequate remedy.

From the decision · page 4tit. 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).) Here, based upon the WCJ's analysis of the merits of defendant's arguments in the Report, 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.

Dr. Piasecki evaluated the applicant and noted the applicant's job duties and honesty in describing his work activities.

From the decision · page 2He stepped on the edge of a pallet and injured his left knee. With respect to his job duties, he has a designated office in San Jose. His job is not considered an office job entirely. His job is different every day so he is not able to estimate the number of hours a day he is in his office but a daily average might be four to five hours. He has not missed any time from work because of this injury and has modified work. Dr. Piasecki is the parties' PQME in this matter. Dr. Piasecki initially evaluated him, asked applicant about continuing his work, and applicant was honest and forthright in his answers. (M.O.H.S.O.E., dated 12/17/2020, at pages 1, 5 § 6, 8)

Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc)

A decision including resolution of a threshold issue is a final decision subject to reconsideration rather than removal.

The WCJ's decision included a threshold issue, so the petition was treated as one for reconsideration.

From the decision · page 1Defendant sought reconsideration or in the alternative removal of the Findings and Award, Order Vacating Order of Submission and Opinion on Decision. 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 (AOE/COE), 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.

Lab. Code, 5904

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.

The petition was denied because reconsideration is the proper remedy and the defendant did not show grounds for removal.

From the decision · page 1Defendant sought reconsideration or in the alternative removal of the Findings and Award, Order Vacating Order of Submission and Opinion on Decision. 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 (AOE/COE), 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.

Applicant's testimony about his job duties and injury circumstances was credited over defendant's claims about occupational code.

From the decision · page 2"At trial, applicant testified that on the date of injury, he was working for defendant as a district director. His job duties include being in charge of fundraising, promoting new programs, establishing new partners with community schools, working with volunteers, and providing assistance with respect to over 80 programs. He spends a lot of time driving to different places for his job. Whenever he attends an event, he needs to carry boxes of documents that are necessary in his job, and equipment and gear with respect to many, many events. He also sets up chairs for as many as 50 people. He loads boxes in and from warehouses, into cars, for distribution. He moves and distributes more than $1 million worth of items. When he is setting up activities, the heaviest thing he would lift would be 40 to 60 pounds. He would do all of these activities almost every day. He would spend some time at his office and travel to various events. On the date of injury, he was loading boxes of popcorn into vehicles from the warehouse.