ADJ9607300 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed and Petition for Removal denied.

Petition for Reconsideration and/or Removal filed in response to the Opinion and Decision After Reconsideration issued by the Appeals Board on December 23, 2021, which rescinded the WCJ's December 11, 2020 Findings and Award and returned the matter to the trial level for further proceedings.

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This docket was decided more than once. Shown here is the latest released decision; we also hold December 23, 2021.

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 was dismissed because the prior decision was not final and did not determine any substantive right or threshold issue. The petition for removal was denied because the petitioner did not show substantial prejudice or irreparable harm if removal was denied, nor that reconsideration would be inadequate.

From the decision · page 1We have considered the allegations of applicant's Petition for Reconsideration and/or Removal in response to the Opinion and Decision After Reconsideration issued by the Appeals Board on December 23, 2021. We received an answer from defendant. Based on our review of the record, we will dismiss the petition to the extent it seeks reconsideration and deny it to the extent it seeks removal.

The facts that decided it

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

The prior Opinion and Decision After Reconsideration rescinded the WCJ's December 11, 2020 Findings and Award and returned the matter to the trial level for further proceedings without issuing new findings or orders.

Favours Defendant prevailed

Because no substantive right or threshold issue was determined, the prior decision was not final, leading to dismissal of the petition for reconsideration.

From the decision · page 2Here, our Opinion and Decision After Reconsideration rescinded the WCJ's December 11, 2020 Findings and Award and returned the matter to the trial level for further proceedings. Both applicant and defendant are incorrect in stating that our Opinion and Decision After Reconsideration contained a finding regarding the role of Dr. Bone. No determination was made on this question since the WCJ's decision was rescinded without issuance by the Appeals Board of any new findings of fact or orders, and the matter was returned to the trial level for further proceedings. This may include development of the record through additional discovery and/or further proceedings before the trier of fact to address Dr. Bone's role in this matter. We decline to accept the evidence applicant attached to her petition, which she may present to the trier of fact in the first instance. Our decision did not determine any substantive right or liability and did not determine a threshold issue. Accordingly, it is not a "final" decision and the petition will be dismissed to the extent it seeks reconsideration.

The petitioner did not show that substantial prejudice or irreparable harm would result if removal was denied, nor that reconsideration would be inadequate if a final adverse decision ultimately issues.

Favours Defendant prevailed

This failure to meet the high standard for removal led to denial of the petition for removal.

From the decision · page 2We 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 if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, 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.

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 prior decision was not final as it did not determine any substantive right or threshold issue, so the petition for reconsideration was 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. 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. 1075 ["interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not `final' "]; Rymer, supra, at p. 1180 ["[t]he term [`final'] does not include intermediate

Cal. Code Regs., tit. 8, § 10955(a)

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

The petitioner did not demonstrate substantial prejudice or irreparable harm if removal was denied, nor that reconsideration would be inadequate, so the petition for removal was denied.

From the decision · page 2We 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 if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, 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.

ADJ9607300 · March 2, 2022

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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