ADJ10451326 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed; Petition for Removal granted; decision after removal deferred

Petition for Reconsideration or Removal filed by lien claimant AV Management regarding service of WCJ's September 28, 2023 Minute Order setting trial date

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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 / removalMixed

The September 28, 2023 Minute Order setting the matter for trial is not a final order and thus not subject to reconsideration; removal to the Appeals Board is granted as an extraordinary remedy under Labor Code section 5310.

From the decision · page 1On January 5, 2024, lien claimant, AV Management, filed a Petition for Reconsideration or in the Alternative Petition for Removal contending, in essence, that the September 28, 2023 Minute Order issued by the workers' compensation administrative law judge (WCJ), which set this matter for trial was not properly served. We have considered the allegations of the Petitions and the contents of the Report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record and for the reasons stated below, we will dismiss the petition to the extent that it seeks reconsideration and we will grant removal on motion of the Workers' Compensation Appeals Board (Appeals Board) pursuant to Labor Code section 5310.

The rules the panel named

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

Labor Code sections 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068

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 September 28, 2023 Minute Order setting the matter for trial is interlocutory and not a final order, so the petition for reconsideration is 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])

Labor Code section 5310; Cal. Code Regs., tit. 8, 10843; Castro v. Workers' Comp. Appeals Bd. (1996) 61 Cal.Comp.Cases 1460; Swedlow, Inc. v. Workers' Comp. Appeals Bd. (Smith) (1985) 48 Cal.Comp.Cases 476

The Appeals Board may remove proceedings to itself as an extraordinary remedy under Labor Code section 5310.

Removal is granted on motion of the Appeals Board as an extraordinary remedy.

From the decision · page 2The Appeals Board is authorized under Labor Code section 5310 to remove to itself, as it deems necessary in any workers' compensation matter, "the proceedings in any claim." This power of removal is discretionary and is generally employed only as an extraordinary remedy. (Cal. Code Regs., tit. 8, § 10843, subd. (a); Castro v. Workers' Comp. Appeals Bd. (1996) 61 Cal.Comp.Cases 1460 (writ den.); Swedlow, Inc. v. Workers' Comp. Appeals Bd. (Smith) (1985) 48 Cal.Comp.Cases 476 (writ den.).)

ADJ10451326 · March 8, 2024

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