ADJ18538112 · August 6, 2024

The WCAB granted reconsideration to allow further review of the merits and the entire record, deferring final decision.

From the decision · page 2Based upon our preliminary review of the record, we will grant applicant's Petition for Reconsideration. Our order granting the Petition for Reconsideration is not a final order, and we will order that a final decision after reconsideration is deferred pending further review of the merits of the Petition for Reconsideration and further consideration of the entire record in light of the applicable statutory and decisional law. Once a final decision after reconsideration is issued by the Appeals Board, any aggrieved person may timely seek a writ of review pursuant to Labor Code section 5950 et seq.

The WCJ found industrial injury on November 26, 2023, and timely Utilization Review determination by defendant.

Favours Applicant prevailed

This finding established the basis for the reconsideration petition and the dispute over medical necessity.

From the decision · page 1Applicant seeks reconsideration of the June 10, 2024 Findings of Fact and Order (F&O), wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a customer service specialist on November 26, 2023, sustained industrial injury to her head, brain, neck and right arm. The WCJ found that defendant's April 23, 2024 Utilization Review determination was timely, and that the court lacked jurisdiction to determine the medical necessity of the services requested.

The WCAB granted reconsideration and deferred final decision pending further review of the merits and entire record.

Favours Applicant prevailed

This procedural action allowed the applicant further opportunity to challenge the medical necessity determination.

From the decision · page 2Based upon our preliminary review of the record, we will grant applicant's Petition for Reconsideration. Our order granting the Petition for Reconsideration is not a final order, and we will order that a final decision after reconsideration is deferred pending further review of the merits of the Petition for Reconsideration and further consideration of the entire record in light of the applicable statutory and decisional law. Once a final decision after reconsideration is issued by the Appeals Board, any aggrieved person may timely seek a writ of review pursuant to Labor Code section 5950 et seq.

Labor Code sections 5803, 5907, 5908, 5908.5

The WCAB has continuing jurisdiction and may rescind, alter, or amend any order, decision, or award for good cause (Lab. Code, §§ 5803, 5907, 5908, 5908.5).

Applied to justify granting reconsideration and deferring final decision.

From the decision · page 5A grant of reconsideration has the effect of causing "the whole subject matter [to be] reopened for further consideration and determination" (Great Western Power Co. v. Industrial Acc. Com. (Savercool) (1923) 191 Cal.724, 729 [10 I.A.C. 322]) and of "[throwing] the entire record open for review." (State Comp. Ins. Fund v. Industrial Acc. Com. (George) (1954) 125 Cal.App.2d 201, 203 [19 Cal.Comp.Cases 98].) Thus, once reconsideration has been granted, the Appeals Board has the full power to make new and different findings on issues presented for determination at the trial level, even with respect to issues not raised in the petition for reconsideration before it. (See Lab. Code, § 5907, 5908, 5908.5; see also Gonzales v. Industrial Acci. Com. (1958) 50 Cal.2d 360, 364.) ["[t]here is no provision in chapter 7, dealing with proceedings for reconsideration and judicial review, limiting the time within which the commission may make its decision on reconsideration, and in the absence of a statutory authority limitation none will be implied."]; see generally Lab. Code, § 5803 ["The WCAB has continuing jurisdiction over its orders, decisions, and awards.... At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor.].)

Rymer v. Hagler (1989) 211 Cal.App.3d 1171

A final order determines substantive rights or liabilities; interlocutory procedural or evidentiary decisions are not final (Rymer v. Hagler (1989) 211 Cal.App.3d 1171).

Applied to explain that the June 10, 2024 order was not final and reconsideration was appropriate.

From the decision · page 5"The WCAB... is a constitutional court; hence, its final decisions are given res judicata effect." (Azadigian v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 372, 374 [57 Cal.Comp.Cases 391; see Dow Chemical Co. v. Workmen's Comp. App. Bd. (1967) 67 Cal.2d 483, 491 [32 Cal.Comp.Cases 431]; Dakins v. Board of Pension Commissioners (1982) 134 Cal.App.3d 374, 381 [184 Cal.Rptr. 576]; Solari v. Atlas-Universal Service, Inc. (1963) 215 Cal.App.2d 587, 593 [30 Cal.Rptr. 407].) 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.