ADJ8555784 · December 22, 2023

The Board found that the petition did not demonstrate significant prejudice or irreparable harm to justify removal and that reconsideration remains an adequate remedy.

From the decision · page 4resolve the issues discussed in our decision. Here, the essence of applicant's petition for removal is her complaint that the record should not be further developed because it will delay final resolution of her claim in ADJ9828972, resulting in significant prejudice or irreparable harm. Accordingly, we will evaluate the issues raised by applicant's petition under the removal standard applicable to non-final decisions, i.e., significant prejudice or irreparable harm.

Applicant failed to demonstrate that further development of the medical record or delay would cause significant prejudice or irreparable harm.

Favours Defendant prevailed

This failure justified denial of the petition for removal under the removal standard for non-final decisions.

From the decision · page 4Here, applicant's first two contentions amount to one allegation that the record justifies a finding she sustained a single cumulative trauma while employed by defendant, from 1993 through February 25, 2015. However, applicant does not explain how the absence of such a finding will result in significant prejudice or irreparable harm, and she does not demonstrate that reconsideration will be an inadequate remedy if a final decision adverse to her is ultimately issued.

Dr. Newton's reporting was to be reviewed by the WCJ to determine if it constitutes substantial evidence of apportionment under Labor Code section 4663.

The WCJ must revisit and resolve whether Dr. Newton's reporting constitutes substantial evidence of apportionment under Labor Code section 4663, pursuant to the standards set forth in Escobedo v. Marshalls (2005).

From the decision · page 2resolve whether Dr. Newton's reporting constitutes substantial evidence of apportionment under

Cal. Code Regs., tit. 8, 10955(a)

The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted.

The Board applied this standard to deny the petition for removal because the petitioner failed to show substantial prejudice or irreparable harm.

From the decision · page 4Removal 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).)

Labor Code section 5906

The Legislature has expressly granted authority to the Board to amend decisions or grant reconsideration and direct additional evidence.

The Board relied on this statute to affirm its authority to further develop the record and deny removal.

From the decision · page 6In this case, therefore, Section Four of Article XIV of our state constitution does not require us to affirm the WCJ's decision of January 19, 2021 or to render a final decision on permanent disability within a certain amount of time, as alleged by applicant. This is because applicant's right to a final determination of permanent disability is subject to Labor Code section 5906. Pursuant to this statute, which does not itself include a time limit, the Legislature has expressly granted authority to the Board to "amend the order, decision, or award made and filed by...the [WCJ] on the basis of the evidence previously submitted in the case, or [the Board] may grant reconsideration and direct the taking of additional evidence."

Applicant did not demonstrate significant prejudice or irreparable harm from further record development or delay.

From the decision · page 4Here, applicant's first two contentions amount to one allegation that the record justifies a finding she sustained a single cumulative trauma while employed by defendant, from 1993 through February 25, 2015. However, applicant does not explain how the absence of such a finding will result in significant prejudice or irreparable harm, and she does not demonstrate that reconsideration will be an inadequate remedy if a final decision adverse to her is ultimately issued.