California WCABPanel decision

ADJ14419334 · August 30, 2021

Petition for reconsideration/removal denied

Issues decided: 1
Medical opinions weighed: 0
Authorities named: 2
District office: Oakland

What the panel ordered

Petition for reconsideration/removal denied

Petition for reconsideration/removal filed and denied

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

Petitioner failed to show significant prejudice or irreparable harm to justify removal; reconsideration deemed adequate remedy; petition denied.

From the decision · page 1OPINION AND ORDER DENYING PETITION FOR RECONSIDERATION

The facts that decided it

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

The WCJ's decision included a finding regarding the threshold issue of employment, making it a final order subject to reconsideration rather than removal.

Favours Defendant prevailed

This made the petition subject to reconsideration standards, not removal standards, limiting the petitioner's relief options.

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The rules the panel named

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

Cal. Code Regs., tit. 8, former 10843(a), now 10955(a)

Petition for reconsideration/removal requires showing significant prejudice or irreparable harm; reconsideration must be inadequate remedy.

Applied to deny petition for removal as extraordinary remedy.

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.

Applied to bar challenge to final decision; distinguishes final and interlocutory decisions.

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.

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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