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Michael Flintroy, Applicant v. Pacific Bell Telephone Co.; Old Republic Insurance Company, Defendants

California Workers Compensation Decisions
Aug 2, 2021
Adjudication ADJ8499566 (Cal. W.C.A.B. Aug. 2, 2021)

Opinion


MICHAEL FLINTROY, Applicant v. PACIFIC BELL TELEPHONE CO.; OLD REPUBLIC INSURANCE COMPANY, Defendants Adjudication No. ADJ8499566 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California August 2, 2021

         Oakland District Office

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

          CRAIG SNELLINGS, COMMISSIONER.

         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. Applicant and defendant both submitted supplemental pleadings. We accept these supplemental pleadings per WCAB Rule 10964. (Cal. Code Regs., tit. 8, former § 10848, now § 10964 (eff. Jan. 1, 2020).) 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.

         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 May 21, 2021 Order Rescinding Findings and Award Dated 04-23-2021 and Setting Case for Further Proceedings (Order) solely resolves an intermediate procedural issue. 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.

         Defendant had also previously filed a Petition for Reconsideration of the April 23, 2021 Findings and Award and Opinion on Decision (F&A). In response to defendant’s Petition, the WCJ rescinded the F&A in the May 21, 2021 Order pursuant to WCAB Rule 10961. (Cal. Code Regs., tit. 8, former § 10859, now § 10961 (eff. Jan. 1, 2020) [within 15 days of the timely filing of a petition for reconsideration, the WCJ retains the authority to issue an order regarding the challenged decision].) Defendant subsequently filed a Supplemental Petition for Reconsideration, as well as a Petition for Provisional Granting of Reconsideration and Permission to Serve Supplemental Pleading. Since the F&A challenged by defendant has been rescinded by the WCJ, defendant’s Petition and supplemental filings regarding the F&A are not pending before the Appeals Board and no action will be taken by the Appeals Board with respect to these pleadings. Further proceedings may be conducted before the district office.

         Therefore, we will dismiss applicant’s Petition as one seeking reconsideration and deny his Petition as one seeking removal.

         For the foregoing reasons,

         IT IS ORDERED that applicant’s Petition for Reconsideration is DISMISSED and the Petition for Removal is DENIED.

         I CONCUR,

          KATHERINE A. ZALEWSKI, CHAIR, MARGUERITE SWEENEY, COMMISSIONER


Summaries of

Michael Flintroy, Applicant v. Pacific Bell Telephone Co.; Old Republic Insurance Company, Defendants

California Workers Compensation Decisions
Aug 2, 2021
Adjudication ADJ8499566 (Cal. W.C.A.B. Aug. 2, 2021)
Case details for

Michael Flintroy, Applicant v. Pacific Bell Telephone Co.; Old Republic Insurance Company, Defendants

Case Details

Full title:MICHAEL FLINTROY, Applicant v. PACIFIC BELL TELEPHONE CO.; OLD REPUBLIC…

Court:California Workers Compensation Decisions

Date published: Aug 2, 2021

Citations

Adjudication ADJ8499566 (Cal. W.C.A.B. Aug. 2, 2021)