ADJ9685765 — California WCAB decision

What the panel ordered

Petition for Removal dismissed as untimely and, alternatively, for lack of jurisdiction because the challenged order was not final.

Applicant filed a Petition for Removal challenging an arbitrator's order denying a request to reopen discovery in a carve-out case; the WCAB reviewed the petition, defendant's answer, and the arbitrator's report.

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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.

Jurisdiction / venueDefendant prevailed

The challenged order was not a final order; only final orders in carve-out cases are reviewable by the Appeals Board.

From the decision · page 3The disputed decision in this matter only involves discovery. Accordingly, this is not a final decision upon which relief from the Appeals Board may be sought. Pursuant to the express language of section 3201.5(a)(1), applicant may only seek review from the Appeals Board of a final decision by the arbitrator.

Reconsideration / removalDefendant prevailed

The rules the panel named

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

Cal. Code Regs., tit. 8, §§ 10605(a)(1), 10955(a), 10600, 10615(b), 10940(a), 10940(b)

A petition for removal must be filed with the WCAB within 25 days of service of a non-final decision; proof of mailing is insufficient, and email filings are not accepted unless otherwise ordered.

Applied to dismiss the petition as untimely because it was not filed in EAMS within the required period and email filing was not accepted.

From the decision · page 1There are 25 days allowed within which to file a petition for removal from a "non-final" decision that has been served by mail upon an address in California. (Cal. Code Regs., tit. 8, § 10605(a)(1), 10955(a).) This time limit is extended to the next business day if the last day for filing falls on a weekend or holiday. (Cal. Code Regs., tit. 8, § 10600.) To be timely, however, a petition for removal must be filed with (i.e., received by) the WCAB within the time allowed; proof that the petition was mailed (posted) within that period is insufficient. (Cal. Code Regs., tit. 8, § 10615(b), 10940(a).)

Lab. Code, § 3201.5(a)(1)

In carve-out cases, only final orders, decisions, or awards are reviewable by the Appeals Board.

Applied to dismiss the petition for lack of jurisdiction because the challenged order was not final.

From the decision · page 2If we were not dismissing the Petition as untimely, we would dismiss applicant's Petition for lack of jurisdiction. Section 3201.5(a)(1) permits a party in a carve-out case to seek reconsideration of a "final order, decision, or award." (Lab. Code, § 3201.5(a)(1), emphasis added).) 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"

ADJ9685765 · May 31, 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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