2009-EB-3 (2009). In re Pellicer.

• Court: California

California Workers Compensation Decisions 2009. 2009-EB-3 (2009). In re Pellicer WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIA MARIO ALMARAZ, Applicant, vs.ENVIRONMENTAL RECOVERY SERVICES (a.k.a. ENVIROSERVE); and STATE COMPENSATION INSURANCE FUND, Defendant(s).Case No. ADJ1078163 (BAK 0145426) OPINION AND DECISION AFTER RECONSIDERATION AND ORDER ALLOWING AMICUS BRIEFS(EN BANC) JOYCE GUZMAN, Applicant, vs.MILPITAS UNIFIED SCHOOL DISTRICT, Permissibly Self-Insured; and KEENAN and ASSOCIATES, Adjusting Agent, Defendant(s).Case No. ADJ3341185 (SJO 0254688)ORDER GRANTING RECONSIDERATION ON BOARD MOTION, AND ORDER ALLOWING AMICUS BRIEFS(EN BANC) On February 3, 2009, the Appeals Board consolidated these cases and issued a joint en banc decision on the issue of rebutting the AMA Guides portion of the 2005 Schedule for Rating Permanent Disabilities. On February 27, 2009, defendant, State Compensation Insurance Fund (SCIF) filed a timely petition for reconsideration in Almaraz. In Guzman, however, no timely petition for reconsideration was filed.[1] For the reasons that follow, we will grant SCIF's petition for reconsideration in Almaraz and, concurrently, we will grant reconsideration on our own motion in Guzman. We will give the parties in Guzman until 5pm on Friday, May 1, 2009 to file briefs on the merits and to serve those briefs on opposing counsel in that case. We also will give any interested person or entity until 5pm on Friday, May 1, 2009 to file an amicus curiae brief and to serve that brief on all counsel in both the Almaraz and Guzman cases.[2] Finally, we will give each counsel in the Almaraz and Guzman cases until 5pm on Thursday, May 21, 2009 to file a single consolidated reply brief that responds to all of the amicus briefs. These time limitations for filing mean that a brief must be received by the Appeals Board by the applicable deadline, and not merely posted by that deadline. (Cal. Code Regs., §§ 10845(a), 10230(a).) Untimely briefs will not be considered. Preliminarily, in granting reconsideration, we conclude that our February 3, 2009 joint en banc decision constitutes a "final" order.[3] A petition for reconsideration is properly taken only from a "final" order, decision, or award. (Lab. Code, §§ 5900(a), 5902, 5903.) Generally, a "final" order is one "which determines any substantive right or liability of those involved in the case." (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180 (Rymer); Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410, 413] (Pointer).) Accordingly, where - as here - the Appeals Board grants reconsideration, rescinds the decision of the WCJ, and returns the matter to the WCJ for further proceedings and a new decision, the Appeals Board's action generally is not deemed a "final" order. (Cf. Travelers Ins. Co. v. Workers' Comp. Appeals Bd. (Taylor) (1983) 147 Cal.App.3d 1033, 1036, fn. 3 [48 Cal.Comp.Cases 774, 775, fn. 3] (Taylor) ("a petition seeking review of a [WCAB] order which remands a matter to the trial judge for further proceedings is ordinarily premature").) However, an interlocutory WCAB decision may be deemed a "final" order if it determines a "threshold" issue. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1073- 1081 [65 Cal.Comp.Cases 650, 653-660] (Maranian); Aldi v. Carr, McClellan, Ingersoll Thompson and Horn (2006) 71 Cal.Comp.Cases 783, 784 (Appeals Board en banc) (Aldi).) A "threshold" issue has variously been described as "a substantial issue fundamental to the . claim for benefits," "an issue critical to the claim for benefits," or "an issue that is basic to the establishment of the ... right[] to benefits." (Maranian, supra, 81 Cal.App.4th at pp. 1070, 1075 [65 Cal.Comp.Cases at pp. 651, 655]; Aldi, supra, 71 Cal.Comp.Cases at p. 784.)[4] If a WCAB decision resolves a "threshold" issue, then it is a "final" decision, whether or not all issues are resolved or there is an ultimate decision on the right to benefits. (Milbauer, supra, 127...