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TRACY ROBINSON, Applicant v. GAY & LESBIAN ADOLESCENT SOCIETY; NATIONAL UNION FIRE INSURANCE COMPANY administered by AIG CLAIMS SERVICES, Defendants

California Workers Compensation Decisions
Aug 27, 2021
ADJ6436843, ADJ6463279 (Cal. W.C.A.B. Aug. 27, 2021)

Opinion


TRACY ROBINSON, Applicant v. GAY & LESBIAN ADOLESCENT SOCIETY; NATIONAL UNION FIRE INSURANCE COMPANY administered by AIG CLAIMS SERVICES, Defendants Nos. ADJ6436843, ADJ6463279 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California August 27, 2021

         Los Angeles District Office

         OPINION AND ORDER

         DISMISSING PETITION FOR

         RECONSIDERATION

         AND DENYING PETITION

         FOR REMOVAL

          /s/ JOSé H. RAZO, COMMISSIONER

         We have considered the allegations of the Petition for Removal 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 petitioner’s arguments in the WCJ’s report, we will 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 decision solely resolves an intermediate procedural or evidentiary issue or issues. 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, for the reasons stated in the WCJ’s report, 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.

         The only order at issue presently is to set the matter for trial, which is not a final order. Petitioner may still raise those substantive issues raised in her Petition at trial with the trial WCJ.

         For the foregoing reasons,

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

          I CONCUR, /s/ KAHERINE A. ZALEWSKI, CHAIR /s/ CRAIG SNELLINGS, COMMISSIONER

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

         TRACY ROBINSON

         TESTAN LAW


Summaries of

TRACY ROBINSON, Applicant v. GAY & LESBIAN ADOLESCENT SOCIETY; NATIONAL UNION FIRE INSURANCE COMPANY administered by AIG CLAIMS SERVICES, Defendants

California Workers Compensation Decisions
Aug 27, 2021
ADJ6436843, ADJ6463279 (Cal. W.C.A.B. Aug. 27, 2021)
Case details for

TRACY ROBINSON, Applicant v. GAY & LESBIAN ADOLESCENT SOCIETY; NATIONAL UNION FIRE INSURANCE COMPANY administered by AIG CLAIMS SERVICES, Defendants

Case Details

Full title:TRACY ROBINSON, Applicant v. GAY & LESBIAN ADOLESCENT SOCIETY; NATIONAL…

Court:California Workers Compensation Decisions

Date published: Aug 27, 2021

Citations

ADJ6436843, ADJ6463279 (Cal. W.C.A.B. Aug. 27, 2021)