Lab. Code, 5904
Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal.
The decision is final because it includes a threshold injury AOE/COE finding, so the petition for reconsideration must be timely.
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
Board en banc).) Threshold issues include, but are not limited to, the following: injury arising out
of and in the course of employment (AOE/COE), jurisdiction, the existence of an employment
relationship and statute of limitations issues. (See Capital Builders Hardware, Inc. v. Workers'
Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) Failure
to timely petition for reconsideration of a final decision bars later challenge to the propriety of the
decision before the WCAB or court of appeal. (See Lab. Code, § 5904.) Alternatively, non-final
decisions may later be challenged by a petition for reconsideration once a final decision issues.
Cal. Code Regs., tit. 8, 10955(a)
The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted, and that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues.
Petitioner failed to show significant prejudice or irreparable harm, so removal was denied.
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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former
§ 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) Here, 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.