California: The Important Distinctions Between Reconsideration and Removal

California: The Important Distinctions Between Reconsideration and Removal

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Commonly, when appealing an adverse determination of a Workers’ Compensation Administrative Law Judge (WCJ), a practitioner will file a petition for reconsideration, and, in the alternative, a petition for removal. There are significant differences between the two remedies, and practitioners may be well advised to know the difference.

As most practitioners know, reconsideration may be had only of a final order, decision or award (Labor Code sections 5900, 5902). Interlocutory procedural orders are not final orders within the meaning of Labor Code section 5900. Discovery or non-final orders may be subject to removal. (Allison v. Workers' Comp. Appeals Bd. (1999) 64 Cal. Comp. Cases 624.) Removal is an extraordinary remedy that will be denied absent substantial prejudice or irreparable harm. (California Code of Regulations Section 10843; see also Swedlow, Inc. v. Workers' Comp. Appeals Bd. (1983) 48 Cal. Comp. Cases 476.)

Yet, despite the very significant distinctions between the two remedies, practitioners continue to incorrectly plead their cases. Such was the case in Avalos v. Staffchex Incorporated, 2011 Cal. Wrk. Comp. P.D. LEXIS 564. In Avalos, a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) addressed a case where they had previously denied applicant’s petition for reconsideration wherein applicant sought reconsideration of interlocutory discovery orders concerning defendant's Petition to Compel Attendance at deposition and "time limitations of a PQME appointment".

In the prior decision, the Appeals Board had dismissed applicant's Petition for Reconsideration because there had been no final order that would have been the appropriate subject to reconsideration. The prior decision explained the statutory and case law defining a final order and noted that "Pre-trial orders regarding evidence, discovery, trial setting, venue, or similar issues – such as the order here – are non-final interlocutory orders that do not determine any substantive right of the parties."

In the subsequent petition for reconsideration, applicant essentially re-stated the same arguments made in his initial petition for reconsideration. He again argued that the WCJ’s interlocutory discovery orders were made in error.

In responding to applicant’s second petition, the panel first dismissed applicant's petition because there was no decision that was subject to reconsideration as was noted in their prior decision. The panel, on its own motion, then granted removal and issued a notice of intention to impose sanctions upon applicant's counsel in the amount of $1,000.00, pursuant to Labor Code section 5813, for filing an impermissibly successive petition for reconsideration that was frivolous and in bad faith.

The panel stated:

At the outset, we note that a petitioning party cannot attack an Appeals Board decision through another petition for reconsideration. Successive petitions such as this one, are not allowed (see Crowe Glass Company v. Industrial Acc. Com. (Graham) (1927) 84 Cal.App. 287; Navarro v. A&A Farming (2002) 67 Cal.Comp.Cases 296, 299-300 (Appeals Board en banc)). A party aggrieved by an Appeals Board decision must petition for a writ of review to the Court of Appeal.

Secondly, the panel specifically observed:

Our August 17, 2011 decision was not a final order subject to a petition for reconsideration. Also, our August 17, 2011 decision expressly explained what a "final order" is. Nevertheless, applicant's current petition completely and utterly disregards that explanation and fails to address why the August 17, 2011 decision was somehow "final" and subject to reconsideration itself. Therefore, we determine that applicant's petition is frivolous and in bad faith.

There are a number of recent panel cases where the commissioners go to great lengths to explain to the parties the significant legal distinctions between a petition for reconsideration and a petition for removal. There are cases where the panel questions why a petition for reconsideration was filed in the face of an order that clearly did not dispose of the substantive rights of either party. There are cases where the panel suggests that sanctions will be considered if a party does not file the correct type of petition.

The fundamental problem is that the two remedies serve completely different purposes. The petition for reconsideration asks that the commissioners review a determination that finally decides a substantive right of a party. The thresholds for review are set forth in Labor Code section 5903 and, unlike a petition for removal, petitioner does not have to explain why the order or decision results in substantial prejudice or irreparable harm. Accordingly, a petition for reconsideration that discusses substantial prejudice or irreparable harm is pointless as is a petition for removal that does not.

In conclusion, parties should know the difference between final and interlocutory orders. Parties should not plead these remedies in the alternative simply because they refuse or are incapable of analyzing the issues involved. Parties would be well advised going forward that the filing of an incorrect petition may not just result in the dismissal of the respective petition, but may also subject the petitioning party to sanctions.

© Copyright 2012. LexisNexis. All rights reserved. This article will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).

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