Opinion
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JOSEFA PERDOMO FLORES, Applicant v. PARTNERS PERSONNEL MANAGEMENT SERVICES LLC; STARR SPECIALTY INSURANCE CO., administered by CORVEL CORP., Defendants Adjudication Nos. ADJ16124753; ADJ16124750 Workers' Compensation Appeals Board State of California March 13, 2024Los Angeles District Office
OPINION AND ORDER DISMISSING PETITION FOR RECONSIDERATION AND GRANTING REMOVAL ON MOTION OF THE APPEALS BOARD
KATHERINE A. ZALEWSKI, CHAIR
On January 24, 2024, applicant filed a Petition for Reconsideration or in the Alternative Petition for Removal contending, in essence, that the January 17, 2024 Order Denying applicant's second Request for Continuance issued by the workers' compensation administrative law judge (WCJ) was a violation of due process. We have considered the allegations of the Petitions 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 for the reasons stated below, we will dismiss the petition to the extent that it seeks reconsideration and we will grant removal on motion of the Workers' Compensation Appeals Board (Appeals Board) pursuant to Labor Code section 5310.
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'
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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 January 17, 2024 Order Denying applicant's Request for a Continuance is not a final order. Accordingly, the petition will be dismissed to the extent it seeks reconsideration.
The Appeals Board is authorized under Labor Code section 5310 to remove to itself, as it deems necessary in any workers' compensation matter, "the proceedings in any claim." This power of removal is discretionary and is generally employed only as an extraordinary remedy. (Cal. Code Regs., tit. 8, § 10843, subd. (a); Castro v. Workers' Comp. Appeals Bd. (1996) 61 Cal.Comp.Cases 1460 (writ den.); Swedlow, Inc. v. Workers' Comp. Appeals Bd. (Smith) (1985) 48 Cal.Comp.Cases 476 (writ den.).)
This is not a final decision on the merits of removal, and we will order that issuance of the final decision after removal is deferred. Once a final decision is issued by the Appeals Board, any aggrieved person may timely seek a writ of review pursuant to Labor Code sections 5950 et seq.
For the foregoing reasons, IT IS ORDERED that the Petition for Reconsideration is DISMISSED.
IT IS FURTHER ORDERED that REMOVAL of this case to the Appeals Board is GRANTED on the motion of the Appeals Board.
IT IS FURTHER ORDERED that a decision after removal is DEFERRED pending further review of the merits of the Petition for Removal and further consideration of the entire record in light of the applicable statutory and decisional law.
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IT IS FURTHER ORDERED that pending the issuance of a Decision after Removal in the above case, all further correspondence, objections, motions, requests and communications relating to the petition(s) shall be filed only with the Office of the Commissioners of the Workers' Compensation Appeals Board at either its street address (455 Golden Gate Avenue, 9th Floor, San Francisco, CA 94102), or its e-mail address (WCABgrantforstudy@dir.ca.gov). It is within the discretion of the Workers' Compensation Appeals Board to determine whether any document submitted for filing is accepted for filing (Cal. Code Regs., tit. 8, § 10615(c) [eff. January 1, 2022]).
I CONCUR, JOSEPH V. CAPURRO, COMMISSIONER CRAIG SNELLINGS, COMMISSIONER