ADJ16369204 · August 11, 2023

The WCJ's decision included a threshold issue making it a final order subject to reconsideration, but the petitioner only challenged an interlocutory finding, so the removal standard was applied. The petitioner failed to show significant prejudice or irreparable harm, and reconsideration was deemed an adequate remedy, leading to denial of the petition and dismissal of removal as moot.

From the decision · page 1We have considered the allegations of the Petition for Removal 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 based upon the WCJ's analysis of the merits of the petitioner's arguments in the WCJ's report, we will deny the Petition as one seeking reconsideration.

The petitioner only challenged an interlocutory finding in the WCJ's decision.

Favours Defendant prevailed

This led the Appeals Board to apply the removal standard rather than reconsideration standard.

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. Therefore, we will apply the removal standard to our review. (See Gaona, supra.)

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

Favours Defendant prevailed

This made the petition for removal subject to reconsideration standards rather than removal standards.

From the decision · page 2Here, the WCJ's decision includes a finding regarding a threshold issue. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal.

The petitioner failed to show significant prejudice or irreparable harm if removal was denied.

Favours Defendant prevailed

This failure justified denial of the petition 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.

The petitioner filed the petition for removal on March 29, 2023, trial was held April 25, 2023, and the WCJ issued Findings and Order on May 23, 2023.

Favours Defendant prevailed

This timeline showed the petition for removal was moot after the WCJ's Findings and Order.

From the decision · page 2Applicant filed a petition for removal on March 29, 2023, in response to prior WCJ's order setting the matter for trial. The matter proceeded to trial on April 25, 2023, and the WCJ issued the Findings and Order that is the subject of the petition for reconsideration on May 23, 2023. Accordingly, we dismiss the petition for removal as moot.

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.

Applied to bar late challenges to final decisions.

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)

The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted.

Applied to deny removal for failure 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.