Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, § 5904; Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783; Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658
A decision resolving a threshold issue is a final decision subject to reconsideration; failure to timely petition bars later challenge (Lab. Code, § 5904).
Determines whether the WCJ's decision is final or interlocutory for purposes of review.
From the decision · page 1If a decision includes resolution of a "threshold" issue, then it is a "final" decision, whether
or not all issues are resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr,
McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals
Lab. Code, § 5909; Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104
A petition is denied by operation of law if not granted within 60 days after filing (Lab. Code, § 5909), but due process requires notice before deprivation of a substantial right (Shipley).
Explains the time limits and due process for petitions for reconsideration.
From the decision · page 1A petition is generally considered denied by operation of law if the Appeals Board does
not grant the petition within 60 days after it is filed. (Lab. Code, § 5909.) However, we believe
that "it is a fundamental principle of due process that a party may not be deprived of a substantial
right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108
[57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied the applicant's petition for
reconsideration because it had not acted on the petition within the statutory time limits of Labor
Code section 5909. This occurred because the Appeals Board had misplaced the file, through no
fault of the parties. The Court of Appeal reversed the Appeals Board's decision holding that the
time to act on applicant's petition was tolled during the period that the file was misplaced. (Shipley,
supra, 7 Cal.App.4th at p. 1108.) Like the Court in Shipley, "we are not convinced that the burden
of the system's inadequacies should fall on [a party]." (Shipley, supra, 7 Cal.App.4th at p. 1108.)
Cal. Code Regs., tit. 8, § 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274
Removal is an extraordinary remedy, granted only if significant prejudice or irreparable harm will result and reconsideration is not an adequate remedy (Cal. Code Regs., tit. 8, § 10955(a)).
Sets the standard for granting removal.
From the decision · page 2Removal 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
significant 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, based upon the WCJ's analysis of the
merits of the petitioner's arguments, we are not persuaded that significant prejudice or irreparable
harm will result if removal is denied and/or that reconsideration will not be an adequate remedy.