What the panel ordered
Petition for reconsideration dismissed; petition for removal denied
Petition for reconsideration and removal filed challenging a WCJ's November 3, 2021 Findings
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 WCJ's November 3, 2021 Findings were not a final order determining substantive rights or a threshold issue, so reconsideration was dismissed; removal was denied because petitioner did not show substantial prejudice or irreparable harm and reconsideration was an adequate remedy.
From the decision · page 1A 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. 1075 ["interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not `final' "]; Rymer, supra, at p. 1180 ["[t]he term [`final'] does not include intermediate
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ's November 3, 2021 Findings did not determine any substantive right or liability and did not determine any threshold issue.
Favours Defendant prevailed
Therefore, the Findings were not a final decision and reconsideration was dismissed.
From the decision · page 2Here, the WCJ's November 3, 2021 Findings do not determine any substantive right or liability and do not determine any threshold issue and, therefore, are not a "final" decision. Accordingly, the petition will be dismissed to the extent it seeks reconsideration.
Petitioner did not demonstrate that substantial prejudice or irreparable harm would result if removal was denied and that reconsideration would not be an adequate remedy.
Favours Defendant prevailed
Therefore, removal was denied.
From the decision · page 2We will treat the petition as one seeking 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) 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, §§ 5900(a), 5902, 5903
A petition for reconsideration may only be taken from a final order, decision, or award.
The WCJ's November 3, 2021 Findings were not a final order determining substantive rights or a threshold issue, so reconsideration was dismissed.
From the decision · page 1A 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. 1075 ["interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not `final' "]; Rymer, supra, at p. 1180 ["[t]he term [`final'] does not include intermediate
Cal. Code Regs., tit. 8, former § 10843(a), now § 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.
Removal was denied because petitioner did not show substantial prejudice or irreparable harm and reconsideration was an adequate remedy.
From the decision · page 2We will treat the petition as one seeking 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) 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.
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