Opinion
San Diego District Office
OPINION AND ORDER DISMISSING PETITION FOR RECONSIDERATION AND DENYING PETITION FOR REMOVAL
MARGUERITE SWEENEY, COMMISSIONER
Applicant filed a pleading captioned Applicant’s Petition for Removal/Petition for Reconsideration on March 4, 2022 and a pleading captioned Applicant’s Amended Petition for Removal/Answer to Petition for Reconsideration on March 16, 2022. Both pleadings request removal and reconsideration and were filed in response to the February 9, 2022 Order Rescinding Findings Award and Order issued by the workers’ compensation administrative law judge (WCJ). We will treat the pleading filed on March 4, 2022 as a Petition for Removal and Reconsideration and address it below. We will treat the pleading filed on March 16, 2022 as a supplemental pleading, which we reject pursuant to our authority under WCAB Rule 10964. (Cal. Code Regs., tit. 8, § 10964.)
We have considered the allegations of the Petition for Removal and Reconsideration 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 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 February 9, 2022 Order Rescinding Findings Award and Order is not a final order. Accordingly, the petition will be dismissed to the extent it seeks reconsideration.
We will treat the petition as one seeking 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.
For the foregoing reasons,
IT IS ORDERED that the Petition for Reconsideration is DISMISSED and the Petition for Removal is DENIED.
I CONCUR, KATHERINE WILLIAMS DODD, COMMISSIONER ANNE SCHMITZ, DEPUTY COMMISSIONER CONCURRING NOT SIGNING