Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
A petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board or it is deemed denied.
The Appeals Board acted on the petition on the 60th day, November 18, 2024, thus timely acting on the petition.
From the decision · page 1I.
Former Labor Code section 5909 provided that a petition for reconsideration was deemed
denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab.
Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant
part that:
(a) A petition for reconsideration is deemed to have been denied by the appeals
board unless it is acted upon within 60 days from the date a trial judge transmits a
case to the appeals board.
(b)
Labor Code sections 5900, 5902, 5903
A petition for reconsideration may only be taken from a final order, decision, or award that determines substantive rights or a threshold issue.
The WCJ's order was an intermediate procedural order, not a final decision, so the petition was dismissed as to reconsideration.
From the decision · page 3II.
A petition for reconsideration may properly be taken only from a "final" order, decision,
or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either
"determines any substantive right or liability of those involved in the case" (Rymer v. Hagler
(1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer)
(1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v.
Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661])
or determines a "threshold" issue that is 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].)
Interlocutory procedural or evidentiary decisions, entered in the midst of the workers'
compensation proceedings, are not considered "final" orders. (Id. at p.
Cal. Code Regs., tit. 8, 10955(a)
Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result if removal is not granted, and reconsideration is not an adequate remedy.
Petitioner did not demonstrate substantial prejudice or irreparable harm, nor that reconsideration would be inadequate, so removal was denied.
From the decision · page 3We observe that here,
while the parties may have entered into stipulations as memorialized in the Minutes of Hearing,
the WCJ did not issue any findings as to the stipulations. Moreover, the WCJ's Order regarding
the selection of a Qualified Medical Evaluator (QME) solely resolves an intermediate procedural
or evidentiary issue or issues. The decision does not determine any substantive right or liability
and does not determine a threshold issue. Accordingly, it is not a "final" decision and the petition
will be dismissed to the extent it seeks reconsideration.
We will also deny the petition to the extent it seeks removal. Removal 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 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