ADJ14750024 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; matter remains remanded to WCJ for further proceedings and record development.

Defendant sought reconsideration of the Appeals Board's prior Opinion granting applicant's Petition for Reconsideration, which had rescinded the WCJ's Joint Findings and Order and remanded for further record development.

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This docket was decided more than once. Shown here is the latest released decision; we also hold November 21, 2023.

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 / removalDefendant prevailed

The prior Appeals Board order remanding for further proceedings was not a final order; removal is an extraordinary remedy and defendant did not show substantial prejudice or irreparable harm, nor that reconsideration would be inadequate after a final decision.

From the decision · page 23] (a petition seeking review of an Appeals Board order which remands a matter to the WCJ for further proceedings is ordinarily premature).) Thus, our prior Order was not a final decision, and therefore we will evaluate the issues raised by the Petition under the removal standard applicable to non-final decisions. Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) The Appeals Board will grant removal only if the petitioner shows that substantial 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).) Having again reviewed the entire record, including our prior Opinion, we see no evidence that defendant is subject to substantial prejudice or irreparable harm. Nor is there any indication that reconsideration will not be an adequate remedy if the WCJ's final decision is adverse to defendant.

The rules the panel named

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

Lab. Code, §§ 5900(a), 5902, 5903; Cal. Code Regs., tit. 8, § 10955(a); Capital Builders Hardware v. WCAB (Gaona) (2016) 5 Cal.App.5th 658; Safeway Stores, Inc. v. WCAB (Pointer) (1980) 104 Cal.App.3d 528; Maranian v. WCAB (2000) 81 Cal.App.4th 1068; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Travelers Ins. Co. v. WCAB (1983) 147 Cal.App.3d 1033; Cortez v. WCAB (2006) 136 Cal.App.4th 596; Kleemann v. WCAB (2005) 127 Cal.App.4th 274

A petition for reconsideration is proper only from a final order, which determines a substantive right or liability or a threshold issue fundamental to the claim; removal is granted only for substantial prejudice or irreparable harm and when reconsideration is inadequate after a final decision.

The Board found its prior remand order was not final and defendant did not meet the standard for removal.

From the decision · page 23] (a petition seeking review of an Appeals Board order which remands a matter to the WCJ for further proceedings is ordinarily premature).) Thus, our prior Order was not a final decision, and therefore we will evaluate the issues raised by the Petition under the removal standard applicable to non-final decisions. Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) The Appeals Board will grant removal only if the petitioner shows that substantial 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).) Having again reviewed the entire record, including our prior Opinion, we see no evidence that defendant is subject to substantial prejudice or irreparable harm. Nor is there any indication that reconsideration will not be an adequate remedy if the WCJ's final decision is adverse to defendant.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

Applicant's testimony and deposition were inconsistent with medical and insurance records regarding prior injuries and symptoms, affecting credibility.

From the decision · page 8When questioned at hearing, applicant generally denied recollection of his testimony or answers raised in deposition, again going to issues of credibility. Notwithstanding any argument raised by applicant's counsel in his Petition for Reconsideration, this WCJ has a duty to weigh all evidence presented including witness credibility (Garza v WCAB (1970) 35 Cal. Comp. Cases 500, 504-505) Based on inconsistencies noted above and record establishing contrary evidence of substance, the WCJ did not find applicant's testimony or claim of injury to be credible (see Lamb v WCAB (1974), 39 Cal. Comp. Cases 310, 314). (Report, p. 5.) To assure that QME Dr. Scheel has a complete and factually accurate record of applicant's injury claims and medical treatment history, it would be appropriate that she be given the opportunity to review the WCJ's Opinion on Decision and/or Report. Accordingly, we grant reconsideration, rescind the F&O, and return the matter to the WCJ for further proceedings consistent with this opinion and to issue a new decision from which any aggrieved person may timely seek reconsideration.

Medical recordsfavours Defendant prevailed

Medical and insurance records showed prior injuries and symptoms not disclosed by applicant, undermining applicant's claim.

From the decision · page 8treatment involving left leg, both shoulders, back or neck (Defendant's Exhibit A, pages 59-61). To the contrary, subpoenaed records of Allied Health (Joint Exhibit 1) establish admitted severe headaches in 2020 resulting in off work period between August 13, 2020-October 13, 2020 and severe back pain, bilateral shoulder pain and headaches in 2019 resulting in off work certification between May 19, 2019 through at least July 22, 2019. Further, records of Manhattan Life Insurance (Defendant's Exhibit C) reflect disability and treatment commencing in March of 2020 resulting from an injury occurring at home while applicant was lifting boxes and walking downstairs when he tripped and fell resulting in severe low back and neck pain. Again, this history was not disclosed on deposition.

ADJ14750024 · February 2, 2024

What the panel ordered

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