What the panel ordered
Petition for Reconsideration denied
Petition for Reconsideration denied as removal standard not met
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.
The petition was denied because the petitioner failed to show significant prejudice or irreparable harm and reconsideration was deemed an adequate remedy.
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.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ's decision included a finding on injury arising out of and occurring in the course of employment, making it a final order subject to reconsideration.
Favours neutral
This made the petition subject to reconsideration standards rather than removal standards.
From the decision · page 2Here, the WCJ's decision includes a finding regarding injury arising out of and occurring in the course of employment (AOE/COE), a threshold issue. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal.
The petitioner only challenged an interlocutory order for additional panel qualified medical evaluation panels, not the final injury finding.
Favours neutral
Therefore, the Appeals Board applied the removal standard instead of reconsideration.
From the decision · page 2Although the decision contains a finding that is final, the petitioner is only challenging an interlocutory finding/order in the decision, the order for additional panel qualified medical evaluation (PQME) panels. Therefore, we will apply the removal standard to our review. (See Gaona, supra.)
The petitioner failed to show significant prejudice or irreparable harm if removal was denied and failed to show reconsideration would be inadequate.
Favours Defendant prevailed
This led to denial of the petition for reconsideration/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 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.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, § 5904; Cal. Code Regs., tit. 8, § 10955(a)
Petition for reconsideration must be timely and removal is an extraordinary remedy granted only if significant prejudice or irreparable harm is shown.
The Appeals Board applied this standard to deny the petition for reconsideration because the petitioner did not meet the criteria for 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 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.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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