ADJ7862936 · June 4, 2021

The petitions were dismissed because the WCJ's decision was not a final order, the petition for removal was untimely, and the petitions for disqualification were moot due to reassignment of the WCJ.

From the decision · page 1We have considered the allegations of applicant's (pro per) Petition for Reconsideration 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 for the reasons discussed below, we will dismiss the Petition as one seeking reconsideration and as one seeking removal.

The WCJ's decision resolved only intermediate procedural or evidentiary issues and did not determine any substantive right or liability or a threshold issue.

Favours Defendant prevailed

This meant the decision was not a "final" order, so the petition for reconsideration was improper.

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'

The petition for removal was filed more than 25 days after service of the WCJ's decision and was not timely received by the WCAB.

Favours Defendant prevailed

This made the petition for removal untimely and subject to dismissal.

From the decision · page 2We will also dismiss the petition as one seeking removal. There are 25 days allowed within which to file a petition for removal from a "non-final" decision that has been served by mail upon an address in California. (Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a); former § 10507(a)(1), now § 10605(a)(1) (eff. Jan. 1, 2020).) This time limit is extended to the next business day if the last day for filing falls on a weekend or holiday. (Cal. Code Regs., tit. 8, former § 10508, now § 10600 (eff. Jan. 1, 2020).) To be timely, however, a petition for removal must be filed with (i.e., received by) the WCAB within the time allowed; proof that the petition was mailed (posted) within that period is insufficient. (Cal. Code Regs., tit. 8, former § 10845(a), now § 10940(a); former § 10392(a), now § 10615(b) (eff. Jan. 1, 2020).)

The petitions for disqualification were moot because the WCJ had been reassigned to another judge.

Favours Defendant prevailed

This made the petitions for disqualification subject to dismissal as moot.

From the decision · page 1Applicant also filed two Petitions for Disqualification of the WCJ, in response to which the WCJ issued a separate report noting that applicant's case has been reassigned to another WCJ. These Petitions will therefore be dismissed as moot.

Lab. Code, §§ 5900(a), 5902, 5903

A petition for reconsideration may properly be taken only from a "final" order, decision, or award.

The WCJ's decision was not a final order because it resolved only intermediate procedural or evidentiary issues and did not determine any substantive right or liability or a threshold issue.

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, §§ 10843(a), 10955(a), 10507(a)(1), 10605(a)(1), 10508, 10600, 10845(a), 10940(a), 10392(a), 10615(b)

A petition for removal must be filed within 25 days of service of a non-final decision and must be received by the WCAB within that time; mailing within the period is insufficient.

The petition for removal was filed more than 25 days after service of the WCJ's decision and was not timely received by the WCAB.

From the decision · page 2We will also dismiss the petition as one seeking removal. There are 25 days allowed within which to file a petition for removal from a "non-final" decision that has been served by mail upon an address in California. (Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a); former § 10507(a)(1), now § 10605(a)(1) (eff. Jan. 1, 2020).) This time limit is extended to the next business day if the last day for filing falls on a weekend or holiday. (Cal. Code Regs., tit. 8, former § 10508, now § 10600 (eff. Jan. 1, 2020).) To be timely, however, a petition for removal must be filed with (i.e., received by) the WCAB within the time allowed; proof that the petition was mailed (posted) within that period is insufficient. (Cal. Code Regs., tit. 8, former § 10845(a), now § 10940(a); former § 10392(a), now § 10615(b) (eff. Jan. 1, 2020).)