Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2; Cal. Code Regs., tit. 8, former 10843(a), now 10955(a) (eff. Jan. 1, 2020)
Petition for removal is an extraordinary remedy rarely exercised and requires showing significant prejudice or irreparable harm; reconsideration is generally an adequate remedy.
The panel applied this standard to deny the petition for removal.
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.,
tit. 8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former
§ 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) 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.
Lab. Code, 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 panel noted this statute in explaining the finality of the WCJ's decision and the nature of reconsideration.
From the decision · page 1If 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.
(Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) 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. (See Lab. Code, § 5904.) Alternatively, non-final decisions may later
be challenged by a petition for reconsideration once a final decision issues.