ADJ30466970 · November 21, 2022

The Appeals Board found the petition for reconsideration was untimely and the underlying orders were interlocutory, not final, thus dismissing the petition for reconsideration.

From the decision · page 3Turning to applicant's Petition for Reconsideration, we note that it was filed on August 25, 2022. Although we did not act upon the petition by October 24, 2022 as required by section 5909, it was through no fault of applicant. We believe that "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied applicant's petition for reconsideration because the Appeals Board had not acted on the petition within the statutory time limits of Labor Code section 5909. The Appeals Board did not act on applicant's petition because it had misplaced the file, through no fault of the parties. The Court of Appeal reversed the Appeals Board's decision holding that the time to act on applicant's petition was tolled during the period that the file was misplaced. (Shipley, supra, 7 Cal.App.4th at p. 1108.) Like the Court in Shipley, "we are not convinced that the burden of the system's inadequacies should fall on [a party]." (Shipley, supra, 7 Cal.App.4th at p. 1108.) Therefore, considering that the WCAB's failure to act was due to a clerical error, we find that our time to act on the petition is tolled.

The Appeals Board affirmed prior orders but amended the 2018 Opinion to refer the matter to the Presiding Judge to consider appointment of a special master and return the matter to the trial level for further proceedings, due to the retirement of the previously appointed special master and procedural posture.

From the decision · page 3In our September 21, 2018 order, we appointed WCJ Zamudio to act as a special master. According to applicant's November 4, 2020 petition, WCJ Zamudio subsequently retired thereby rendering our previous order moot. We granted removal on December 7, 2020. Yet, contrary to the assertions by applicant in her Petition for Reconsideration, pursuant to WCAB Rule 10955(e), the WCJ continued to have authority to proceed even after removal was granted, and the WCJ, in consultation with the PJ, could have taken appropriate action. However, in order to clarify that WCJ Zamudio is no longer the special master, we will amend our September 21, 2018 order to reflect that the matter is referred to the PJ to determine the issue of a special master and to take any other appropriate action.

WCJ Ralph Zamudio retired, rendering the prior special master appointment moot.

Favours Defendant prevailed

This required the Appeals Board to amend prior orders and refer the matter to the Presiding Judge to consider appointment of a new special master and return the matter to the trial level for further proceedings.

From the decision · page 3In our September 21, 2018 order, we appointed WCJ Zamudio to act as a special master. According to applicant's November 4, 2020 petition, WCJ Zamudio subsequently retired thereby rendering our previous order moot. We granted removal on December 7, 2020. Yet, contrary to the assertions by applicant in her Petition for Reconsideration, pursuant to WCAB Rule 10955(e), the WCJ continued to have authority to proceed even after removal was granted, and the WCJ, in consultation with the PJ, could have taken appropriate action. However, in order to clarify that WCJ Zamudio is no longer the special master, we will amend our September 21, 2018 order to reflect that the matter is referred to the PJ to determine the issue of a special master and to take any other appropriate action.

The orders from September 21, 2018 and December 7, 2020 were interlocutory and not final orders.

Favours Defendant prevailed

This meant reconsideration was not appropriate and the petition for reconsideration was dismissed.

From the decision · page 4A 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' compensation proceedings, are not considered "final" orders. (Id. at p.

Appointed to assist in determining entitlement to temporary disability, permanent disability, and VRMA benefits due to ongoing disputes.

The WCJ appointed Dr. Silbart to assist in making determinations regarding disputed benefits.

From the decision · page 9We reasoned that the April 7, 2009 Stipulated Award "only resolved the question of the extent of applicant's permanent disability and the fees owed applicant's attorney based on the permanent disability awarded." (Id. at p. 4.) It did not resolve the exact amount of permanent disability to be paid. (Ibid.) "Paragraph 9 of the April 7, 2009 stipulations expressly note the parties' dispute about whether applicant was owed temporary disability indemnity, permanent disability indemnity or VRMA for portion of the time from May 13, 2003 to April 7, 2009. It is apparent that this dispute has not yet been resolved, as shown by the WCJ's appointment of Dr. Silbart to assist in making that determination.

Cal. Code Regs., tit. 8, 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

Removal is an extraordinary remedy granted only if significant prejudice or irreparable harm will result if not granted; reconsideration must not be an adequate remedy if a final adverse decision issues.

The Appeals Board granted removal due to the retirement of the special master and procedural posture requiring further proceedings.

From the decision · page 2DISCUSSION 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]; 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 significant 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).)

Lab. Code 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068

A petition for reconsideration may only be taken from a final order, decision, or award; interlocutory procedural or evidentiary decisions are not final orders.

The Appeals Board dismissed the petition for reconsideration as the underlying orders were interlocutory and not final.

From the decision · page 4A 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' compensation proceedings, are not considered "final" orders. (Id. at p.

Applicant's failure to submit to an Independent Medical Evaluation with Dr. Silbart

From the decision · page 7We received an Answer from defendant. Defendant contends that applicant failed to meet her burden of proof to show that she is entitled to penalties because the record contains inadequate medical evidence on the time periods she suffered temporary and permanent disability. Defendant further contends that an accounting was not performed because applicant failed to submit to an Independent Medical Evaluation (IME) with Dr. Silbart. Defendant also contends that applicant was not denied due process because there are valid objections to applicant's witnesses.