ADJ18784660 · November 18, 2024

The petition for reconsideration was timely acted upon within 60 days of transmission to the Appeals Board, but the underlying order was not final as it resolved only an intermediate procedural issue. Removal was denied as petitioner did not show substantial prejudice or irreparable harm.

From the decision · page 1I. Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board. (b)

The case was transmitted to the Appeals Board on September 18, 2024, and the petition was acted upon on November 18, 2024, within the 60-day period required by Labor Code section 5909.

Favours Defendant prevailed

This established the timeliness of the petition for reconsideration, leading to dismissal only on other grounds.

From the decision · page 2Here, according to Events, the case was transmitted to the Appeals Board on September 18, 2024 and 60 days from the date of transmission is Sunday, November 17, 2024. The next business day that is 60 days from the date of transmission is Monday, November 18, 2024. (See Cal. Code Regs., tit. 8, § 10600(b).)1 This decision is issued by or on Monday, November 18, 2024, so that we have timely acted on the petition as required by Labor Code section 5909(a).

The WCJ's order resolved only an intermediate procedural issue and did not determine any substantive right or threshold issue, so it was not a final order.

Favours Defendant prevailed

This meant the petition for reconsideration was improper and had to be dismissed on finality grounds.

From the decision · page 3We observe that here, while the parties may have entered into stipulations as memorialized in the Minutes of Hearing, the WCJ did not issue any findings as to the stipulations. Moreover, the WCJ's Order regarding the selection of a Qualified Medical Evaluator (QME) solely resolves an intermediate procedural or evidentiary issue or issues. The decision 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. We will also deny the petition to the extent it seeks 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, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy

Petitioner did not show substantial prejudice or irreparable harm if removal was denied, nor that reconsideration would be inadequate.

Favours Defendant prevailed

This justified denial of the petition for removal as an extraordinary remedy.

From the decision · page 4if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) We are not persuaded that substantial prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy if the matter ultimately proceeds to a final decision adverse to petitioner. With regard to applicant's contention that they are entitled to additional QME panels, we note here that applicant is entitled to have all body parts/system in dispute evaluated, however as outlined in the WCJ's Report, there is an established procedure for doing so.

Labor Code section 5909

A petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board or it is deemed denied.

The Appeals Board acted on the petition on the 60th day, November 18, 2024, thus timely acting on the petition.

From the decision · page 1I. Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board. (b)

Labor Code sections 5900, 5902, 5903

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

The WCJ's order was an intermediate procedural order, not a final decision, so the petition was dismissed as to reconsideration.

From the decision · page 3II. A 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. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Id. at p.

Cal. Code Regs., tit. 8, 10955(a)

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

Petitioner did not demonstrate substantial prejudice or irreparable harm, nor that reconsideration would be inadequate, so removal was denied.

From the decision · page 3We observe that here, while the parties may have entered into stipulations as memorialized in the Minutes of Hearing, the WCJ did not issue any findings as to the stipulations. Moreover, the WCJ's Order regarding the selection of a Qualified Medical Evaluator (QME) solely resolves an intermediate procedural or evidentiary issue or issues. The decision 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. We will also deny the petition to the extent it seeks 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, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy