Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5904
Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal.
The WCJ's decision included a threshold issue making it a final decision subject to reconsideration.
From the decision · page 2II.
If a decision includes resolution of a "threshold" issue, then it is a "final" decision, whether
or not all issues are resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr,
McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals
Board en banc).) Threshold issues include, but are not limited to, the following: injury arising out
of and in the course of employment, jurisdiction, the existence of an employment relationship and
statute of limitations issues. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd.
Labor Code section 5909
A petition for reconsideration is deemed denied unless acted upon within 60 days from the date a trial judge transmits a case to the appeals board.
The Appeals Board acted timely on the petition within 60 days of transmission.
From the decision · page 1I.
Former Labor Code section 59091 provided that a petition for reconsideration was deemed
denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab.
Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:
(a) A petition for reconsideration is deemed to have been denied by the appeals
board unless it is acted upon within 60 days from the date a trial judge transmits
a case to the appeals board.
Cal. Code Regs., tit. 8, 10955(a)
The Appeals Board will grant removal only if the petitioner shows significant prejudice or irreparable harm and that reconsideration will not be an adequate remedy.
The petitioner failed to show significant prejudice or irreparable harm and reconsideration was deemed an adequate remedy.
From the decision · page 3Removal 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.,
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.