ADJ16246113 · September 15, 2025

The WCJ's order was interlocutory and not a final order, so reconsideration was dismissed. Removal was denied because defendant did not show substantial prejudice or irreparable harm. The work-product privilege was not established at trial and was waived on appeal.

From the decision · page 1Defendant seeks reconsideration of the "Findings and Order" (F&O) issued on July 8, 2025, by the workers' compensation administrative law judge (WCJ). The WCJ ordered defendant to serve on cost petitioner its market rate guidelines if a market rate has been established, and to provide the name of the person most knowledgeable as to its market rate guidelines.

The WCJ's order was an interlocutory discovery order, not a final order.

Favours Defendant prevailed

Because reconsideration may only be taken from final orders, the petition for reconsideration was dismissed.

From the decision · page 5Here, the order issued by the WCJ is a decision solely addressing discovery. The decision contains no final order from which reconsideration may be sought, and thus we dismiss the petition as one seeking reconsideration. Defendant is admonished that filing petitions for reconsideration from non-final orders is not permissible and may be sanctionable. (See id.)

Defendant failed to demonstrate substantial prejudice or irreparable harm to justify removal.

Favours Defendant prevailed

Removal was denied as the petitioner did not meet the high standard required for removal.

From the decision · page 5Here, and for the reasons discussed below, defendant has not established substantial prejudice or irreparable harm. Accordingly, we deny the petition to the extent it seeks removal.

Defendant did not raise the issue of attorney work-product privilege at the trial level and waived it on appeal.

Favours Defendant prevailed

The Appeals Board declined to consider the privilege claim due to lack of proof and waiver.

From the decision · page 6The reconsideration process has the effect of causing "the whole subject matter [to be] reopened for further consideration and determination" (Great Western Power Co. v. Industrial Acc. Com. (Savercool) (1923) 191 Cal. 724, 729 [10 I.A.C. 322]) and of "[throwing] the entire record open for review." (State Comp. Ins. Fund v. Industrial Acc. Com. (George) (1954) 125 Cal.App.2d 201, 203 [19 Cal.Comp.Cases 98].) The Appeals Board is not precluded from examining issues not raised at the trial level, including defendant's allegation of privilege, however, the Appeals Board generally exercises such authority reluctantly when the interests of substantial justice are warranted. Here, and perhaps because defendant failed to consider this issue at the trial level, defendant did not establish its burden to prove that the requested discovery is privileged.

Ledezma v. Kareem Cart Commissary and Mfg (2024) 89 Cal. Comp. Cases 462 (En Banc)

A petition for reconsideration may only be taken from a final order, decision, or award; interlocutory procedural or evidentiary decisions are not final orders.

The WCJ's order was interlocutory and not a final order, so reconsideration was dismissed.

From the decision · page 5Here, the order issued by the WCJ is a decision solely addressing discovery. The decision contains no final order from which reconsideration may be sought, and thus we dismiss the petition as one seeking reconsideration. Defendant is admonished that filing petitions for reconsideration from non-final orders is not permissible and may be sanctionable. (See id.)

Cal. Code Regs., tit. 8, § 10955(a)

Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and that reconsideration is inadequate.

Removal was denied because defendant did not show substantial prejudice or irreparable harm.

From the decision · page 5We treat the petition as one seeking removal. Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) 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.) A petitioner must also 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).)

Regents of University of California v. Workers' Comp. Appeals Bd. (2014) 226 Cal.App.4th 1530

Evidence Code statutes prohibiting disclosure of privileged materials apply to WCAB proceedings.

Defendant did not establish privilege at trial and waived the issue on appeal.

From the decision · page 6In Regents of University of California v. Workers' Comp. Appeals Bd. (2014) 226 Cal.App.4th 1530 [173 Cal. Rptr. 3d 80] (Lappi) the court held that Evidence Code statutes prohibiting disclosure of assertedly privileged materials for the purpose of determining their related privilege claims apply to WCAB proceedings.