ADJ18360589 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed as untimely; Petition for Removal denied.

Applicant sought reconsideration of a trial setting order and an order deferring action on defendant's petition for dismissal; the WCAB reviewed the record and incorporated the WCJ's report, dismissing the reconsideration petition as untimely and denying removal.

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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 petition for reconsideration of the Order Deferring was filed after the 25-day deadline from service by mail, making it untimely and depriving the Board of jurisdiction.

From the decision · page 3Here, applicant seeks reconsideration of the Order Deferring which was served by mail on June 12, 2024. Therefore, any petition for reconsideration needed to be filed 25 days from June 12, 2024, i.e., on or before the first business day after Sunday, July 7, 2024, or Monday, July 8, 2024. Applicant filed the Petition for Reconsideration on July 12, 2024. The Petition for Reconsideration is therefore untimely.

Reconsideration / removal

The facts that decided it

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

Petition for Reconsideration of the Order Deferring was filed after the 25-day deadline from service by mail.

Favours Defendant prevailed

This made the petition untimely and deprived the Board of jurisdiction to consider it.

From the decision · page 3Here, applicant seeks reconsideration of the Order Deferring which was served by mail on June 12, 2024. Therefore, any petition for reconsideration needed to be filed 25 days from June 12, 2024, i.e., on or before the first business day after Sunday, July 7, 2024, or Monday, July 8, 2024. Applicant filed the Petition for Reconsideration on July 12, 2024. The Petition for Reconsideration is therefore untimely.

The trial setting order is an interim procedural order and does not finally determine any substantive right or threshold issue.

Favours Defendant prevailed

This meant the order was not subject to reconsideration, requiring dismissal of the petition.

From the decision · page 4Here, the trial setting order is an interim procedural order setting the matter for trial and makes no final determination on the issue of employment or on the issue of discovery. The trial setting order sets the issues presented for hearing in order to ensure the due process rights of both parties. Accordingly, the trial setting order is not a final order subject to reconsideration and we must therefore dismiss the Petition for Reconsideration.

Applicant did not show substantial prejudice, irreparable harm, or inadequacy of reconsideration as a remedy.

Favours Defendant prevailed

This led to denial of removal of the trial setting order.

From the decision · page 5We concur with the WCJ that there is no risk of irreparable harm or substantial prejudice to the applicant in having this matter set for trial given that the trial judge has been tasked by the trial setting order with hearing the issue of employment and determining whether the record requires further development on that issue pursuant to the trial judge's power and duty to do so (see eg., McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 (Appeals Bd. en banc). (Report, p. 4.) Thus, there is no reason why reconsideration would not be an adequate remedy after a final order, decision, or award issues after hearing.

The rules the panel named

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

Lab. Code §§ 5900(a), 5903; Cal. Code Regs., tit. 8, §§ 10605(a), 10940, 10615(b)

A petition for reconsideration must be filed within 25 days of service by mail of a final decision; proof of mailing is insufficient, and the time limit is jurisdictional.

Applied to dismiss the petition for reconsideration of the Order Deferring as untimely.

From the decision · page 3We concur with the WCJ that the Petition for Reconsideration of the Order Deferring is untimely. There are twenty-five days allowed within which to file a petition for reconsideration from a "final" decision that has been served by mail upon an address in California. (Lab. Code, § 5900(a), 5903; Cal. Code Regs., tit. 8, § 10605(a).) To be timely, however, a petition for reconsideration must be filed with (i.e., received by) the WCAB within the time allowed (Cal. Code Regs., tit. 8, § 10940, 10615(b)). Proof that the petition was mailed (posted) within that period is insufficient.

Lab. Code §§ 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075

A petition for reconsideration may only be taken from a final order, decision, or award that determines a substantive right or threshold issue.

Applied to find the trial setting order is not a final order subject to reconsideration.

From the decision · page 4A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) "An order, decision, or award of the WCAB or workers' compensation judge is final for purposes of a petition for reconsideration where it determines any substantive right or liability of those involved in the case." (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180 [260 Cal.Rptr. 76] quoting Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661, 665]; see also, Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410, 413].) An order may also be "final" when it determines a "threshold" issue fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650, 650-651, 655-656].)

Cal. Code Regs., tit. 8, § 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2

Removal is granted only if substantial prejudice or irreparable harm will result and reconsideration is not an adequate remedy.

Applied to deny removal of the trial setting order as applicant did not meet the standard.

From the decision · page 5Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, 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, § 10955(a); see also Cortez, supra; Kleemann, supra.) In addition, 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).)

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Defendant prevailed

The trial setting order did not finally determine any substantive right or threshold issue, making it not subject to reconsideration.

From the decision · page 4Here, the trial setting order is an interim procedural order setting the matter for trial and makes no final determination on the issue of employment or on the issue of discovery. The trial setting order sets the issues presented for hearing in order to ensure the due process rights of both parties. Accordingly, the trial setting order is not a final order subject to reconsideration and we must therefore dismiss the Petition for Reconsideration.

Documentary evidencefavours Defendant prevailed

Applicant's petition was filed after the statutory deadline for reconsideration, as shown by the date of service and filing.

From the decision · page 3Here, applicant seeks reconsideration of the Order Deferring which was served by mail on June 12, 2024. Therefore, any petition for reconsideration needed to be filed 25 days from June 12, 2024, i.e., on or before the first business day after Sunday, July 7, 2024, or Monday, July 8, 2024. Applicant filed the Petition for Reconsideration on July 12, 2024. The Petition for Reconsideration is therefore untimely.

Documentary evidencefavours Defendant prevailed

Applicant did not demonstrate substantial prejudice, irreparable harm, or inadequacy of reconsideration as a remedy.

From the decision · page 5We concur with the WCJ that there is no risk of irreparable harm or substantial prejudice to the applicant in having this matter set for trial given that the trial judge has been tasked by the trial setting order with hearing the issue of employment and determining whether the record requires further development on that issue pursuant to the trial judge's power and duty to do so (see eg., McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 (Appeals Bd. en banc). (Report, p. 4.) Thus, there is no reason why reconsideration would not be an adequate remedy after a final order, decision, or award issues after hearing.

ADJ18360589 · September 16, 2024

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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