What the panel ordered
Petition for Reconsideration dismissed; Petition for Removal denied.
Applicant filed a Petition for Reconsideration regarding a Minute Order taking the matter off calendar; the WCAB reviewed the petition and the WCJ's report.
This docket was decided more than once. Shown here is the latest released decision; we also hold February 21, 2023, April 4, 2022, April 30, 2021.
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 Minute Order taking the matter off calendar is not a final order as it does not determine any substantive right or threshold issue; thus, reconsideration is not available.
From the decision · page 2Here, the WCJ's January 22, 2024 Minute Order taking this matter off calendar is not a final order. Accordingly, the petition will be dismissed to the extent it seeks reconsideration.
Applicant did not show substantial prejudice or irreparable harm, nor that reconsideration would be inadequate; removal is not warranted.
From the decision · page 2Even if we treated the petition as one seeking removal, we would deny it. 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 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 facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The Minute Order taking the matter off calendar did not determine any substantive right or threshold issue.
Favours Defendant prevailed
This meant the order was not final and not subject to reconsideration.
From the decision · page 2Here, the WCJ's January 22, 2024 Minute Order taking this matter off calendar is not a final order. Accordingly, the petition will be dismissed to the extent it seeks reconsideration.
Applicant did not show substantial prejudice or irreparable harm, nor that reconsideration would be inadequate.
Favours Defendant prevailed
This meant removal was not warranted.
From the decision · page 2Even if we treated the petition as one seeking removal, we would deny it. 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 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 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; Safeway Stores, Inc. v. WCAB (Pointer); Kaiser Foundation Hospitals v. WCAB (Kramer); Maranian v. WCAB
A petition for reconsideration may be taken only from a final order, decision, or award, which determines a substantive right or threshold issue; interlocutory procedural or evidentiary decisions are not final orders.
Applied to find the Minute Order taking the matter off calendar is not a final order subject to reconsideration.
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'
Cal. Code Regs., tit. 8, § 10955(a); Cortez v. WCAB; Kleemann v. WCAB
Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is not an adequate remedy.
Applied to deny removal because applicant did not show substantial prejudice or irreparable harm, nor that reconsideration would be inadequate.
From the decision · page 2Even if we treated the petition as one seeking removal, we would deny it. 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 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.
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About this page
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