What the panel ordered
The Petition for Removal and Disqualification and the Petition for Reconsideration are dismissed as untimely and not from a final order.
Applicant filed a Petition for Removal and Disqualification and a Petition for Reconsideration on June 9, 2023, challenging a February 17, 2023 order denying a request to change trial to MSC and for a virtual hearing.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The petitions were dismissed because the order challenged was not a final order, the petition for removal was untimely, and the petition for disqualification was both insufficiently supported and untimely.
From the decision · page 2Here, the February 17, 2023 Order Denying Request to Change Trial to MSC and Continued Denial of Request for Virtual Hearing is solely an intermediate procedural order. It does not determine any substantive right or liability and does not determine a threshold issue. Accordingly, it is not a "final" decision. Therefore, the petitions will be dismissed to the extent they seek reconsideration.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The petition for disqualification was not supported by facts declared under penalty of perjury and was untimely.
Favours Defendant prevailed
A petition for disqualification must be timely and factually supported; thus, the request was dismissed.
From the decision · page 3Here, the petition for disqualification does not set forth facts, declared under penalty of perjury, that are sufficient to establish disqualification pursuant to Labor Code section 5311, WCAB Rule 10960, and Code of Civil Procedure section 641(f) and/or (g). Moreover, the petition is untimely pursuant to WCAB Rule 10960. Accordingly, the request for disqualification will be dismissed.
The February 17, 2023 order was an intermediate procedural order, not a final order.
Favours Defendant prevailed
Only final orders are subject to reconsideration; thus, the petition for reconsideration was improper.
From the decision · page 2Here, the February 17, 2023 Order Denying Request to Change Trial to MSC and Continued Denial of Request for Virtual Hearing is solely an intermediate procedural order. It does not determine any substantive right or liability and does not determine a threshold issue. Accordingly, it is not a "final" decision. Therefore, the petitions will be dismissed to the extent they seek reconsideration.
The petition for removal was filed more than 25 days after service of the WCJ's decision.
Favours Defendant prevailed
Petitions for removal must be filed within 25 days; thus, the petition was untimely.
From the decision · page 2The petition in this matter was filed on June 9, 2023. This was more than 25 days after the service of the WCJ's February 17, 2023 decision. Applicant's petition is therefore untimely.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, §§ 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068
A petition for reconsideration may only be taken from a final order, decision, or award, which determines a substantive right or liability or a threshold issue fundamental to the claim for benefits. Interlocutory procedural or evidentiary decisions are not final orders.
The February 17, 2023 order was an intermediate procedural order, not a final order, so reconsideration was not proper.
From the decision · page 1A 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
Cal. Code Regs., tit. 8, §§ 10605(a)(1), 10955(a), 10600, 10615(b), 10940(a)
A petition for removal must be filed within 25 days of service of a non-final decision, and must be received by the WCAB within that time.
The petition was filed more than 25 days after service of the WCJ's decision, so it was untimely.
From the decision · page 2To the extent applicant requested removal, there are 25 days allowed within which to file a petition for removal from a "non-final" decision that has been served by mail upon an address in California. (Cal. Code Regs., tit. 8, § 10605(a)(1), 10955(a).) This time limit is extended to the next business day if the last day for filing falls on a weekend or holiday. (Cal. Code Regs., tit. 8, § 10600.) To be timely, however, a petition for removal must be filed with (i.e., received by) the WCAB within the time allowed; proof that the petition was mailed (posted) within that period is insufficient. (Cal. Code Regs., tit. 8, § 10615(b), 10940(a).)
Lab. Code, § 5311; Code Civ. Proc., § 641; Cal. Code Regs., tit. 8, § 10960; Mackie v. Dyer (1957) 154 Cal.App.2d 395
A petition for disqualification must be supported by an affidavit or declaration under penalty of perjury stating facts establishing grounds for disqualification, and must be filed within 10 days after service of notice of hearing or after grounds are known.
The petition for disqualification was not supported by sufficient facts and was untimely.
From the decision · page 2Finally, we address to the request for disqualification. Labor Code section 5311 provides that a party may seek to disqualify a WCJ upon any one or more of the grounds specified in Code of Civil Procedure section 641. (Lab. Code, § 5311; see also Code Civ. Proc., § 641.) Among the grounds for disqualification under section 641 are that the WCJ has "formed or expressed an unqualified opinion or belief as to the merits of the action" (Code Civ. Proc., § 641(f)) or that the WCJ has demonstrated "[t]he existence of a state of mind... evincing enmity against or bias toward either party" (Code Civ. Proc., § 641(g)).
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