California Court of Appeal Annuls Writ of Review Because Workers’ Compensation Orders and Decisions Must be Final before Seeking Writ

In an appeal involving procedural issues central to the claims of injured workers, a California Court of Appeal addressed whether there had been a final order and whether an employer could seek review of a denial of a petition to remove and reconsider. The court reiterated that writs of review may only be sought from final orders or decisions of the appeals board.

The injured employee in this case alleged that he suffered an industrial injury and filed a workers’ compensation claim. After a medical report was circulated, his employer, Capital Builders Hardware, Inc., argued the report was inadmissible and requested that it be stricken. The workers’ compensation judge denied Capital’s motions, and Capital appealed the decision to the Workers’ Compensation Appeals Board. The board dismissed and denied the petition for removal and the petition for reconsideration.

Then, Capital sought writ review in the appellate court. The issue was whether the appeals board’s order was reviewable. In order for a petition for writ of review to be sought, there must be a final order or a decision issued by the appeals board.

The employee alleged he was hurt at work. Dr. Sherry Mendelson evaluated him, as the agreed medical evaluator (AME). She offered her opinion that the employee should be evaluated by a chronic pain specialist and recommended Dr. Lawrence Miller. He then made a report for 24/7 home care assistance. This report was sent back to Dr. Mendelson.

The employer, Capital Builders, objected to Dr. Miller’s report, alleging it was not admissible. Capital filed a petition to strike Dr. Mendelson’s reports and to remove her as the agreed medical evaluator. The workers’ compensation judge (WCJ) denied Capital’s petition to strike. Capital then petitioned for removal or for reconsideration.

The appeals board found the WCJ’s decision was an interlocutory procedural order, rather than a final order. They concluded it was not a proper subject of a petition for reconsideration. They dismissed the petition for reconsideration and found that Capital had not showed substantial prejudice, so they also denied the removal petition.

A California appellate court issued a writ of review and requested briefing on whether the case of Alvarez v. Workers’ Comp. Appeals Bd. (2010), 187 Cal.App.4th 575 (Alvarez), suggested that either the order by the WCJ or the appeals board’s order was reviewable. The court stated the law that only final decisions, awards, or orders of the appeals board receive writs of review.   The purpose of this rule is to uphold the rule that workers’ compensation proceedings should be expeditious and inexpensive. Certain threshold issues that have been finally determined will qualify as final orders, such as whether an injury arises out of and in the course of employment, or whether the statute of limitations applies.

Here, the court stated the appeals board had dismissed the petition for reconsideration and denied the petition for removal. The appellate court stated the orders were not final because they left issues for future consideration. Since they related to workers’ compensation issues, the court made clear that these orders also did not qualify as orders that disposed of issues central to workers’ compensation cases, such as whether the communication was or was not ex parte.

The court rejected the notion that Alvarez stands for the notion that review can be authorized for a decision regarding ex parte communications. There, the WCJ had found there had not been improper ex parte communications between the defense counsel and a panel-qualified medical examiner. While the appeals board denied reconsideration, the appellate court recognized the issue was reviewable and reversed that part of the appeals board decision holding the communication was prohibited.

The appellate court stated that it had been an error for the Alvarez court to issue a writ of review, since the appeals board’s order was not a final order.

The court stated the writ of review was annulled, and the case was remanded to the appeals board.

At Sharifi Firm, our skilled workers’ compensation attorneys represent injured Southern California workers in their claims for compensation.  We are experienced in all facets of the process, including appealing an adverse decision.  Contact our office for a free, confidential consultation by calling 866.422.7222.

More Blog Posts:

California Court Holds State Workers’ Compensation System Provides Injured Employees Ample Opportunity for Review and Does Not Violate State Constitution, Southern California Injury Lawyer Blog, November 17, 2015

California Court of Appeals Holds Cumulative Injuries within the State Provide Legitimate Relationship to Invoke Worker’s Compensation Laws, Southern California Injury Lawyer Blog, October 7, 2015

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