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Ervin Parker, Applicant v. State of California, Department of Corrections and Rehabilitation, legally uninsured, adjusted by State Compensation Insurance Fund, Defendants

California Workers Compensation Decisions
Aug 9, 2021
ADJ12731535 (Cal. W.C.A.B. Aug. 9, 2021)

Opinion


ERVIN PARKER, Applicant v. STATE OF CALIFORNIA, DEPARTMENT OF CORRECTIONS AND REHABILITATION, legally uninsured, adjusted by STATE COMPENSATION INSURANCE FUND, Defendants No. ADJ12731535 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California August 9, 2021

         Salinas District Office

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

          KATHERINE A. ZALEWSKI, CHAIR.

         We have considered the allegations of applicant's Petition for Reconsideration, defendant's answer and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, we will dismiss the petition to the extent it seeks reconsideration and deny it to the extent it seeks removal.

The presiding WCJ issued the June 16, 2021 order challenged by applicant. However, he was unavailable to write the report in response to applicant's petition and therefore, another WCJ in the district office prepared the report.

         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 16, 2021 Order solely resolves an intermediate procedural or evidentiary issue or issues. The Opinion on Decision provides the rationale for the Order, but only the Order itself is binding. (See Lab. Code, § 5313.) 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, we are not persuaded that substantial prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy if the matter ultimately proceeds to a final decision adverse to petitioner.

         Therefore, we will dismiss applicant's petition to the extent it seeks reconsideration and deny it to the extent it seeks removal.

         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, MARGUERITE SWEENEY. COMMISSIONER


Summaries of

Ervin Parker, Applicant v. State of California, Department of Corrections and Rehabilitation, legally uninsured, adjusted by State Compensation Insurance Fund, Defendants

California Workers Compensation Decisions
Aug 9, 2021
ADJ12731535 (Cal. W.C.A.B. Aug. 9, 2021)
Case details for

Ervin Parker, Applicant v. State of California, Department of Corrections and Rehabilitation, legally uninsured, adjusted by State Compensation Insurance Fund, Defendants

Case Details

Full title:ERVIN PARKER, Applicant v. STATE OF CALIFORNIA, DEPARTMENT OF CORRECTIONS…

Court:California Workers Compensation Decisions

Date published: Aug 9, 2021

Citations

ADJ12731535 (Cal. W.C.A.B. Aug. 9, 2021)