Candace Lightsy, Applicant v. Menzies Aviation, Inc.; XL Specialty Insurance by Gallagher Bassett, Defendants

Full title: CANDACE LIGHTSY, Applicant v. MENZIES AVIATION, INC.; XL SPECIALTY…

Court: California Workers Compensation Decisions

Date published: Oct 8, 2021

ADJ11337718 (Cal. W.C.A.B. Oct. 8, 2021)

Opinion

CANDACE LIGHTSY, Applicant v. MENZIES AVIATION, INC.; XL SPECIALTY INSURANCE by GALLAGHER BASSETT, Defendants No. ADJ11337718 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California October 8, 2021

         Van Nuys District Office

          MARGUERITE SWEENEY, COMMISSIONER

         OPINION AND ORDER DISMISSING PETITION FOR RECONSIDERATION AND DENYING PETITION FOR REMOVAL

         We have considered the allegations of the Petition for Reconsideration/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 the petitioner’s arguments in the WCJ’s report, we will dismiss the petition to the extent it seeks reconsideration and deny it to the extent it seeks 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’ compensation proceedings, are not considered “final” orders. (Id. at p. 1075 [“interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not ‘final’ ”]; Rymer, supra, at p. 1180 [“[t]he term [‘final’] does not include intermediate procedural orders or discovery orders”]; Kramer, supra, at p. 45 [“[t]he term [‘final’] does not include intermediate procedural orders”].) Such interlocutory decisions include, but are not limited to, pre-trial orders regarding evidence, discovery, trial setting, venue, or similar issues.

         Here, the WCJ’s June 28, 2021 Order Rescinding Order of Dismissal solely resolves an intermediate procedural issue. The decision does not determine any substantive right or liability and does not determine a threshold issue. Accordingly, it is not a “final” decision and the petition will be dismissed to the extent it seeks reconsideration.

         We 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]; 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); 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, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) Here, based upon the WCJ’s analysis of the merits of the petitioner’s arguments, 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.

         We are persuaded the WCJ was within his discretion to treat Applicant’s Objection to Order of Dismissal filed on June 22, 2021 as a timely Petition for Reconsideration and to act pursuant to WCAB Rule 10961.

         For the foregoing reasons,

         IT IS ORDERED that the Petition for Reconsideration is DISMISSED and the Petition for Removal is DENIED.

         WORKERS’ COMPENSATION APPEALS BOARD

          I CONCUR, KATHERINE A. ZALEWSKI, CH, JOSé H. RAZO, COMMISSIONER CONCURRING NOT SIGNING

         SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.

         CANDACE LIGHTSY

         LAW OFFICES OF DAVID ISSAPOUR

         FISHER LAW LTD.