ADJ7026552 PARISS KELLY, Applicant v. CARPET MASTER CHEM-DRY; WAUSAU UNDERWRITER'S INSURANCE COMPANY, insured by LIBERTY MUTUAL INSURANCE COMPANY, Defendants

Full title: ADJ7026552 PARISS KELLY, Applicant v. CARPET MASTER CHEM-DRY; WAUSAU…

Court: Workers’ Compensation Appeals Board State of California

Date published: Aug 8, 2023

No. ADJ7026552 (Cal. W.C.A.B. Aug. 8, 2023)

Opinion

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PARISS KELLY, Applicant v. CARPET MASTER CHEM-DRY; WAUSAU UNDERWRITER'S INSURANCE COMPANY, insured by LIBERTY MUTUAL INSURANCE COMPANY, Defendants No. ADJ7026552 Workers’ Compensation Appeals Board State of California August 8, 2023

Oakland District Office

OPINION AND ORDER DISMISSING PETITION FOR RECONSIDERATION

JOSEPH V. CAPURRO, COMMISSIONER

Applicant in pro per has filed a Petition for Reconsideration from the May 30, 2023 Order Cancelling the June 12, 2023 Hearing Notice of Intent to Sanction issued by the workers' compensation administrative law judge (WCJ). We have considered the allegations of the Petition for 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, the petition seeks reconsideration of a non-final order and will be dismissed. We further note that applicant is not aggrieved.

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,

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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 order taking this matter off calendar and notice of intent to sanction is not a final decision. Moreover, there are no pending issues in this case and applicant is not aggrieved. Accordingly, the petition for reconsideration will be dismissed.

We refer this matter to the presiding judge for possible initiation of vexatious litigant proceedings.

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For the foregoing reasons,

IT IS ORDERED that the Petition for Reconsideration is DISMISSED.

I CONCUR,

KATHERINE A. ZALEWSKI, CHAIR

PATRICIA A. GARCIA, DEPUTY COMMISSIONER