ADJ14750024 · February 2, 2024

The prior Appeals Board order remanding for further proceedings was not a final order; removal is an extraordinary remedy and defendant did not show substantial prejudice or irreparable harm, nor that reconsideration would be inadequate after a final decision.

From the decision · page 23] (a petition seeking review of an Appeals Board order which remands a matter to the WCJ for further proceedings is ordinarily premature).) Thus, our prior Order was not a final decision, and therefore we will evaluate the issues raised by the Petition under the removal standard applicable to non-final decisions. Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) 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, 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).) Having again reviewed the entire record, including our prior Opinion, we see no evidence that defendant is subject to substantial prejudice or irreparable harm. Nor is there any indication that reconsideration will not be an adequate remedy if the WCJ's final decision is adverse to defendant.

The Appeals Board's prior order remanded for further proceedings and was not a final order; defendant did not show substantial prejudice or irreparable harm.

Favours Defendant prevailed

This meant reconsideration was not proper and removal was not warranted, so the petition was denied.

From the decision · page 23] (a petition seeking review of an Appeals Board order which remands a matter to the WCJ for further proceedings is ordinarily premature).) Thus, our prior Order was not a final decision, and therefore we will evaluate the issues raised by the Petition under the removal standard applicable to non-final decisions. Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) 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, 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).) Having again reviewed the entire record, including our prior Opinion, we see no evidence that defendant is subject to substantial prejudice or irreparable harm. Nor is there any indication that reconsideration will not be an adequate remedy if the WCJ's final decision is adverse to defendant.

Diagnosed applicant with mild, chronic cervical spine sprain/strain, right shoulder sprain/strain with impingement, mild, chronic thoracolumbar sprain/strain, and 'rule out' left knee internal derangement; opined need for treatment arose out of employment but deferred causation of permanent disability until MMI; deposition revealed incomplete records and need for re-evaluation.

Her opinions were not found to be substantial evidence due to incomplete records and lack of re-evaluation; Board ordered further record development and re-evaluation.

From the decision · page 5On March 10, 2022, QME Dr. Scheel, evaluated applicant. After examining applicant, taking a history, and reviewing the medical record she was provided, Dr. Scheel diagnosed applicant as having mild, chronic cervical spine sprain and strain, right shoulder sprain and strain with impingement, mild, chronic thoracolumbar sprain and strain, and a "rule out" diagnosis of left knee internal derangement. (App. Exh. 1, Carla Scheel, DC, March 10, 2022, p. 30.) Dr. Scheel found that applicant had not reached maximum medical improvement (MMI) and regarding the cause of applicant's condition, she stated:

Lab. Code, §§ 5900(a), 5902, 5903; Cal. Code Regs., tit. 8, § 10955(a); Capital Builders Hardware v. WCAB (Gaona) (2016) 5 Cal.App.5th 658; Safeway Stores, Inc. v. WCAB (Pointer) (1980) 104 Cal.App.3d 528; Maranian v. WCAB (2000) 81 Cal.App.4th 1068; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Travelers Ins. Co. v. WCAB (1983) 147 Cal.App.3d 1033; Cortez v. WCAB (2006) 136 Cal.App.4th 596; Kleemann v. WCAB (2005) 127 Cal.App.4th 274

A petition for reconsideration is proper only from a final order, which determines a substantive right or liability or a threshold issue fundamental to the claim; removal is granted only for substantial prejudice or irreparable harm and when reconsideration is inadequate after a final decision.

The Board found its prior remand order was not final and defendant did not meet the standard for removal.

From the decision · page 23] (a petition seeking review of an Appeals Board order which remands a matter to the WCJ for further proceedings is ordinarily premature).) Thus, our prior Order was not a final decision, and therefore we will evaluate the issues raised by the Petition under the removal standard applicable to non-final decisions. Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) 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, 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).) Having again reviewed the entire record, including our prior Opinion, we see no evidence that defendant is subject to substantial prejudice or irreparable harm. Nor is there any indication that reconsideration will not be an adequate remedy if the WCJ's final decision is adverse to defendant.

Applicant's testimony and deposition were inconsistent with medical and insurance records regarding prior injuries and symptoms, affecting credibility.

From the decision · page 8When questioned at hearing, applicant generally denied recollection of his testimony or answers raised in deposition, again going to issues of credibility. Notwithstanding any argument raised by applicant's counsel in his Petition for Reconsideration, this WCJ has a duty to weigh all evidence presented including witness credibility (Garza v WCAB (1970) 35 Cal. Comp. Cases 500, 504-505) Based on inconsistencies noted above and record establishing contrary evidence of substance, the WCJ did not find applicant's testimony or claim of injury to be credible (see Lamb v WCAB (1974), 39 Cal. Comp. Cases 310, 314). (Report, p. 5.) To assure that QME Dr. Scheel has a complete and factually accurate record of applicant's injury claims and medical treatment history, it would be appropriate that she be given the opportunity to review the WCJ's Opinion on Decision and/or Report. Accordingly, we grant reconsideration, rescind the F&O, and return the matter to the WCJ for further proceedings consistent with this opinion and to issue a new decision from which any aggrieved person may timely seek reconsideration.

Medical and insurance records showed prior injuries and symptoms not disclosed by applicant, undermining applicant's claim.

From the decision · page 8treatment involving left leg, both shoulders, back or neck (Defendant's Exhibit A, pages 59-61). To the contrary, subpoenaed records of Allied Health (Joint Exhibit 1) establish admitted severe headaches in 2020 resulting in off work period between August 13, 2020-October 13, 2020 and severe back pain, bilateral shoulder pain and headaches in 2019 resulting in off work certification between May 19, 2019 through at least July 22, 2019. Further, records of Manhattan Life Insurance (Defendant's Exhibit C) reflect disability and treatment commencing in March of 2020 resulting from an injury occurring at home while applicant was lifting boxes and walking downstairs when he tripped and fell resulting in severe low back and neck pain. Again, this history was not disclosed on deposition.