ADJ14097686 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed; Petition for Removal denied

Petition for Reconsideration and Petition for Removal filed by Department of Industrial Relations/Death Without Dependents Unit

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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.

Reconsideration / removalDefendant prevailed

The WCJ's February 25, 2021 order was an interlocutory procedural order, not a final order, so reconsideration was improper and dismissed; removal was denied because petitioner failed to show substantial prejudice or irreparable harm and reconsideration was an adequate remedy.

From the decision · page 1The Department of Industrial Relations/Death Without Dependents Unit (DWD) seeks reconsideration of "ORDER RESCINDING 1/28/2021 ORDER APPROVING COMPROMISE & RELEASE, AND SUSPENDING ACTION ON COMPROMISE & RELEASE AND NOTICE OF HEARING" (Order) issued by the workers' compensation administrative law judge (WCJ) on February 25, 2021. We have considered the allegations of the 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 based upon the WCJ's analysis of the merits of the petitioner's arguments in the WCJ's report, we will dismiss the petition to the extent it seeks reconsideration, treat the petition as one seeking removal, and deny removal.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The WCJ's February 25, 2021 order was an interlocutory procedural order that did not determine any substantive right or liability or a threshold issue.

Favours Defendant prevailed

This meant the order was not a "final" order, so reconsideration was improper and dismissed.

From the decision · page 2Here, the WCJ's February 25, 2021 Order is an intermediate procedural order. The order does not determine any substantive right or liability and does not determine a threshold issue. Accordingly, it is not a "final" decision and the petition will be dismissed to the extent it seeks reconsideration.

Petitioner failed to show that substantial prejudice or irreparable harm would result if removal was denied, and that reconsideration would not be an adequate remedy.

Favours Defendant prevailed

This meant removal was denied as an extraordinary remedy was not justified.

From the decision · page 2We will also deny removal. 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, 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.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

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 February 25, 2021 order was an interlocutory procedural order, not a final order, so reconsideration was improper and dismissed.

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.

Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020)

The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted, and that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues.

Removal was denied because petitioner failed to show substantial prejudice or irreparable harm and reconsideration was an adequate remedy.

From the decision · page 2We will also deny removal. 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, 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.

ADJ14097686 · May 6, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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