ADJ16963666 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Defendant sought reconsideration of the WCJ's Findings and Order denying defendant's entitlement to a replacement panel.

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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.

QME/AME processDefendant prevailedlumbar spine · shoulders · psyche · head

The Appeals Board found no evidence that Dr. Esch's license was suspended or revoked, only that it was delinquent due to unpaid renewal fees, which was remedied before the decision date, so the replacement panel was not justified and the PQME reports were admissible.

From the decision · page 1Defendant contends that the WCJ erred by not issuing a replacement panel in the field of orthopedic surgery and by not deeming inadmissible the medical reporting of the panel qualified evaluator (PQME), James Esch, M.D.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The rules the panel named

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

Labor Code section 5909

Labor Code section 5909(a) requires the Appeals Board to act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board.

The Appeals Board timely acted on the petition within the 60-day period.

From the decision · page 2I. Former Labor Code section 59091 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

Labor Code section 5909

Labor Code section 5909(b)(1) requires parties and the Appeals Board be provided notice of transmission of the case.

Service of the Report and Recommendation provided actual notice to the parties of the transmission date.

From the decision · page 3Section 5909(b)(1) requires that the parties and the Appeals Board be provided with notice of transmission of the case. Transmission of the case to the Appeals Board in EAMS provides notice to the Appeals Board. Thus, the requirement in subdivision (1) ensures that the parties are notified of the accurate date for the commencement of the 60-day period for the Appeals Board to act on a petition. Labor Code section 5909(b)(2) provides that service of the Report and Recommendation shall be notice of transmission.

Labor Code section 5904

Labor Code section 5904 bars later challenge to a final decision if petition for reconsideration is not timely filed.

The WCJ's decision included threshold issues making it a final order subject to reconsideration.

From the decision · page 4If 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, 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.

Board Rule 10945(c)

Board Rule 10945(c) prohibits attaching documents to petitions for reconsideration that are already in evidence or not newly discovered.

Exhibits attached to the Petition were disregarded as they were copies or not newly discovered evidence.

From the decision · page 5In determining whether we may consider defendant's attachments to the Petition, we note WCAB Rule 10945(c) provides the following:

ADJ16963666 · April 13, 2026

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

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