ADJ17359167 · May 24, 2024

The WCJ order denying petition for dismissal was a non-final order not determining substantive rights or threshold issues, so reconsideration was improper; removal was denied as petitioner did not show substantial prejudice or irreparable harm.

From the decision · page 1Defendant seeks reconsideration of the Order Denying Petition for Dismissal (Order) issued by a workers' compensation administrative law judge (WCJ) on March 7, 2024.

The WCJ order denying the petition for dismissal was a non-final order that did not determine any substantive right or threshold issue.

Favours Defendant prevailed

Because reconsideration is only proper from final orders, the petition for reconsideration was dismissed.

From the decision · page 2Here, defendant's Petition challenges the WCJ's decision to deny its petition for dismissal. However, the decision does not determine any substantive right or liability and does not determine a threshold issue. As the WCJ states in her Report, this Order is a non-final Order and defendant's Petition For Reconsideration is not appropriate because the Order is a non-final order. Accordingly, it is not a "final" decision and the petition will be dismissed to the extent it seeks reconsideration.

Petitioner did not show that substantial prejudice or irreparable harm would result if removal was denied, nor that reconsideration would be inadequate.

Favours Defendant prevailed

Because removal is an extraordinary remedy requiring such a showing, the petition for removal was denied.

From the decision · page 2We will also deny the petition to the extent it seeks removal. Removal 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, 157]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133, 136].) 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).) 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. (Cal. Code Regs., tit. 8, § 10955(a).)

Lab. Code, §§ 5900(a), 5902, 5903

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

The WCJ order denying dismissal was a non-final order, so reconsideration was not proper.

From the decision · page 1Defendant contends that the WCJ should have issued an order dismissing applicant's case. We did not receive an Answer. The WCJ filed a Report and Recommendation on Petition for Reconsideration (Report) recommending that the Petition be denied. We have considered the allegations of the Petition for Reconsideration and the contents of the Report. Based on our review of the record and for the reasons stated below, we dismiss the petition to the extent it seeks reconsideration, treat the petition as a Petition for removal, and deny the Petition for Removal. A 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'

Cal. Code Regs., tit. 8, § 10955(a)

Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result if removal is not granted, and reconsideration is not an adequate remedy.

Petitioner did not demonstrate substantial prejudice or irreparable harm, nor that reconsideration would be inadequate, so removal was denied.

From the decision · page 2We will also deny the petition to the extent it seeks removal. Removal 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, 157]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133, 136].) 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).) 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. (Cal. Code Regs., tit. 8, § 10955(a).)