What the panel ordered
Order Granting Petition for Reconsideration vacated; Petition for Reconsideration dismissed; Petition for Removal denied
Petition for Reconsideration granted May 23, 2022; decision after reconsideration issued March 8, 2022; petition dismissed and removal denied November 14, 2024
This docket was decided more than once. Shown here is the latest released decision; we also hold March 8, 2022.
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 petition for reconsideration was dismissed because the order rescinding the WCJ's decision was interlocutory and not a final order, thus not subject to reconsideration; removal was denied as the petitioner did not show significant prejudice or irreparable harm.
From the decision · page 2We have considered the allegations of the Petition for Reconsideration and the Answer. Based on our review of the record, and our analysis in our March 8, 2022 Opinion and Decision After Reconsideration, we make no changes to our March 8, 2022 decision. We will vacate our May 23, 2022 Order Granting the Petition for Reconsideration, and dismiss the Petition as one seeking reconsideration as it seeks reconsideration of a non-final order. We will treat it as one seeking removal and deny the Petition.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The order rescinding the WCJ's decision was interlocutory and did not determine any substantive right or threshold issue.
Favours Defendant prevailed
Because it was not a final order, the petition for reconsideration was dismissed as improper.
From the decision · page 2Here, we rescinded the WCJ's decision in its entirety. Thus, our 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 for reconsideration will be dismissed.
The petitioner did not show significant prejudice or irreparable harm if removal was denied.
Favours Defendant prevailed
This failure meant removal was not warranted and the petition was denied.
From the decision · page 3tit. 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 our analysis of the merits of applicant'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 order rescinding the WCJ's decision was interlocutory and not final, so the petition for reconsideration was dismissed.
From the decision · page 2A 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 the petitioner shows significant prejudice or irreparable harm and that reconsideration is not an adequate remedy.
Removal was denied because the petitioner did not demonstrate significant prejudice or irreparable harm and reconsideration was deemed an adequate remedy.
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.,
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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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