ADJ17198125 · April 28, 2025

The petition was timely acted upon within 60 days of transmission to the Appeals Board, and the petitioner failed to show substantial prejudice or irreparable harm to justify removal.

From the decision · page 1We have considered the allegations of the petition for removal 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 based upon the WCJ's analysis of the merits of petitioner's arguments in the WCJ's report, we will treat the petition as one for reconsideration and deny reconsideration.

The case was transmitted to the Appeals Board on March 13, 2025, and the petition was acted upon by April 28, 2025, within the 60-day statutory period.

Favours Defendant prevailed

This timing satisfied the statutory requirement for timely action on the petition for reconsideration, leading to denial of the petition.

From the decision · page 2Under section 5909(a), the Appeals Board must act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board. Transmission is reflected in Events in the Electronic Adjudication Management System (EAMS). Specifically, in Case Events, under Event Description is the phrase "Sent to Recon" and under Additional Information is the phrase "The case is sent to the Recon board."

Petitioner did not demonstrate substantial prejudice or irreparable harm if removal was denied or that reconsideration would be inadequate.

Favours Defendant prevailed

Without such a showing, removal is not warranted and reconsideration remains an adequate remedy, supporting denial of the petition.

From the decision · page 3Removal 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 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).)

Applicant's psychiatric injury is a compensable consequence of the physical injury; applicant was seen by psychologist Dr. Lawrence Lyon for PTSD, anxiety, and insomnia and referred to cognitive behavior therapy.

From the decision · page 4The panel qualified medical examiner (PQME) took a history of applicant using a machine and when he pressed the hub and bearings in, it suddenly exploded. Applicant believes it was the metal bearing that hit his left hand, injuring his index and middle fingers. (Joint exhibit 2, Saiyon Hou, M.D., PhD., June 26, 2023, page 2.) On re-evaluation the PQME noted that applicant was seen by psychologist, Dr. Lawrence Lyon, for PTSD, anxiety, and insomnia. Applicant had been referred to cognitive behavior therapy. (Joint exhibit 1, Saiyon Hou, M.D., PhD., March 11, 2024, page 2.)

Labor Code section 5909

Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.

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

From the decision · page 1I. Preliminarily, we note that 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. Effective July 2, 2024, section 5909 was amended to state in the 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.

Cal. Code Regs., tit. 8, 10955(a)

Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result and reconsideration is inadequate.

Petitioner failed to show substantial prejudice or irreparable harm or inadequacy of reconsideration remedy.

From the decision · page 3Removal 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 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).)

Applicant's testimony about stress, anxiety, and fear related to the injury event and avoidance of the machine.

From the decision · page 4On December 30, 2024, the parties proceeded to trial. As relevant here, the parties stipulated that applicant sustained injury to his psyche. Applicant sought a PQME in psychiatry to address the issue of permanent disability. Defendant asserted that the psychiatric injury is a compensable consequence of the orthopedic injuries and therefore section 4660.1(c) eliminates entitlement to a PQME in psychiatry. (Minutes of Hearing, Summary of Evidence, December 30, 2024, page 2, lines 16 to 18 (hereafter MOH).) Applicant testified that he suffers stress and anxiety as a result of the incident, and "every time he goes by the area, he gets scared, trembles, and is sweaty. He agreed he is afraid of loud noises now. He does not work with that machine anymore." (MOH, page 4 lines 17 to 19.)