From Casetext: Smarter Legal Research

ADJ10913544 FERNANDO MURILLO TAPIA, Applicant v. CPC LOGISTICS LLC And ACE AMERICAN INSURANCE COMPANY; administered by CANNON COCHRAN MANAGEMENT SERVICES, INC., Defendants

California Workers Compensation Decisions
Aug 4, 2021
ADJ10913544, ADJ10913545 (Cal. W.C.A.B. Aug. 4, 2021)

Opinion


FERNANDO MURILLO TAPIA, Applicant v. CPC LOGISTICS LLC And ACE AMERICAN INSURANCE COMPANY; administered by CANNON COCHRAN MANAGEMENT SERVICES, INC., Defendants Nos. ADJ10913544, ADJ10913545 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California August 4, 2021

         Sacramento District Office

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

          KATHERINE A. ZALEWSKI, CHAIR

         On June 7, 2021, defendant filed a Petition for Reconsideration of our May 10, 2021 Opinion and Decision After Reconsideration. We have considered the allegations of the Petition for Reconsideration. Based on our review of the record, we will dismiss the petition to the extent it seeks reconsideration, treat the petition as a Petition for Removal, 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, our May 10, 2021 Opinion and Decision After Reconsideration 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 also deny 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, 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,

          MARGUERITE SWEENEY. COMMISSIONER, JOSE H. RAZO. COMMISSIONER


Summaries of

ADJ10913544 FERNANDO MURILLO TAPIA, Applicant v. CPC LOGISTICS LLC And ACE AMERICAN INSURANCE COMPANY; administered by CANNON COCHRAN MANAGEMENT SERVICES, INC., Defendants

California Workers Compensation Decisions
Aug 4, 2021
ADJ10913544, ADJ10913545 (Cal. W.C.A.B. Aug. 4, 2021)
Case details for

ADJ10913544 FERNANDO MURILLO TAPIA, Applicant v. CPC LOGISTICS LLC And ACE AMERICAN INSURANCE COMPANY; administered by CANNON COCHRAN MANAGEMENT SERVICES, INC., Defendants

Case Details

Full title:ADJ10913544 FERNANDO MURILLO TAPIA, Applicant v. CPC LOGISTICS LLC And ACE…

Court:California Workers Compensation Decisions

Date published: Aug 4, 2021

Citations

ADJ10913544, ADJ10913545 (Cal. W.C.A.B. Aug. 4, 2021)