ADJ12640295 — California WCAB decision

What the panel ordered

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

Petition for Reconsideration or in the Alternative Petition for Removal filed by applicant on March 18, 2024, challenging the WCJ's February 23, 2024 Minute Order denying continuance request

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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 WCJ's February 23, 2024 Minute Order denying continuance is not a final order, so reconsideration is improper; removal is granted as an extraordinary remedy under Labor Code section 5310.

From the decision · page 1On March 18, 2024, applicant filed a Petition for Reconsideration or in the Alternative Petition for Removal contending, in essence, that the February 23, 2024 Minute Order denying applicant's request for continuance issued by the workers' compensation administrative law judge (WCJ) was a violation of due process. 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

A petition for reconsideration may properly be taken only from a "final" order, decision, or award.

The WCJ's February 23, 2024 Minute Order denying continuance is interlocutory and not final, so reconsideration is improper.

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'

Labor Code section 5310

The 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."

Removal is granted as an extraordinary remedy under Labor Code section 5310.

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.).)

ADJ12640295 · April 19, 2024

What the panel ordered

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