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TARA DURHAM, Applicant v. AVEANNA HEALTHCARE, LLC; CORVEL CORPORATION., Defendants

California Workers Compensation Decisions
Aug 16, 2021
ADJ12312830 (Cal. W.C.A.B. Aug. 16, 2021)

Opinion


TARA DURHAM, Applicant v. AVEANNA HEALTHCARE, LLC; CORVEL CORPORATION., Defendants No. ADJ12312830 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California August 16, 2021

         San Bernardino District Office

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

          KATHERINE A. ZALEWSKI, CHAIR

         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, and based upon the WCJ’s analysis of the merits of the petitioner’s arguments in the WCJ’s report, 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, the WCJ’s May 25, 2021 Minute Order granting applicant’s request to change venue 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 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, based upon the WCJ’s analysis of the merits of the petitioner’s arguments, 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, KATHERINE WILLIAMS DODD, COMMISSIONER, MARGUERITE SWEENEY, COMMISSIONER

         SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.

         TARA DURHAM

         LAW OFFICES OF LUCY M. BISHOP

         D’ANDRE LAW


Summaries of

TARA DURHAM, Applicant v. AVEANNA HEALTHCARE, LLC; CORVEL CORPORATION., Defendants

California Workers Compensation Decisions
Aug 16, 2021
ADJ12312830 (Cal. W.C.A.B. Aug. 16, 2021)
Case details for

TARA DURHAM, Applicant v. AVEANNA HEALTHCARE, LLC; CORVEL CORPORATION., Defendants

Case Details

Full title:TARA DURHAM, Applicant v. AVEANNA HEALTHCARE, LLC; CORVEL CORPORATION.…

Court:California Workers Compensation Decisions

Date published: Aug 16, 2021

Citations

ADJ12312830 (Cal. W.C.A.B. Aug. 16, 2021)