ADJ16142394 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed; Petition for Removal denied. Neither the Order Suspending nor the April NIT are final orders subject to reconsideration or removal.

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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 orders at issue are interim procedural and/or discovery orders, not final orders determining any substantive right or threshold issue. Therefore, they are not subject to reconsideration.

From the decision · page 4Here, the Order Suspending and the April NIT are both interim procedural and/or discovery orders. Neither of these orders represent a final order finally determining any substantive right or liability of any party, nor finally determining any threshold issue basic to applicant's right to benefit. The Order Suspending neither approved nor disapproved the C&R, and the April NIT made no findings of fact or award of sanctions. Both orders set the issues presented for further discovery and further hearing, thereby ensuring due process for all parties involved.

Reconsideration / removal

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, §§ 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Kaiser Foundation Hospitals v. WCAB (Kramer) (1978) 82 Cal.App.3d 39; Safeway Stores, Inc. v. WCAB (Pointer) (1980) 104 Cal.App.3d 528; Maranian v. WCAB (2000) 81 Cal.App.4th 1068

A petition for reconsideration may be taken only from a final order, decision, or award that determines a substantive right or threshold issue.

The orders at issue are not final as they do not determine any substantive right or threshold issue.

From the decision · page 3A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) "An order, decision, or award of the WCAB or workers' compensation judge is final for purposes of a petition for reconsideration where it determines any substantive right or liability of those involved in the case." (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180 [260 Cal.Rptr. 76] quoting Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661, 665]; see also, Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410, 413].) An order may also be "final" when it determines a "threshold" issue 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, 650-651, 655-656].)

Cal. Code Regs., tit. 8, § 10955(a); Cortez v. WCAB (2006) 136 Cal.App.4th 596; Kleemann v. WCAB (2005) 127 Cal.App.4th 274

Removal is granted only if the petitioner shows substantial prejudice or irreparable harm and that reconsideration is not an adequate remedy.

No substantial prejudice or irreparable harm shown; reconsideration remains available if a final adverse decision issues.

From the decision · page 5Removal 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]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, 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, supra.) In addition, 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).)

ADJ16142394 · July 5, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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