Robert Gaona claimed industrial injury. He was evaluated by Dr. Sherry Mendelson, the agreed medical evaluator, who opined that he should be evaluated by a chronic pain specialist and recommended Dr. Lawrence R. Miller. Dr. Miller recommended “24 hours 7-day a week home care assistance.” His report was sent to Dr. Mendelson, who accepted his opinion and recommended that 24/7 care be provided.
Capital Builders later objected to the admissibility of Dr. Miller’s report. It then filed a petition to strike Dr. Mendelson’s reports and remove her as the AME in psychiatry pursuant to section 4062.3, subdivision (g). The petition alleged that there was no agreement to provide Dr. Miller’s report to the AME and that sending Dr. Miller’s report to Dr. Mendelson was an improper ex parte communication.
The WCJ denied Capital Builders’s petition to strike “without prejudice.”
Capital Builders petitioned for removal or in the alternative for reconsideration. The appeals board found the WCJ’s decision to be an interlocutory procedural order that was not a final order and was therefore not the proper subject of a petition for reconsideration. The appeals board thus dismissed the petition for reconsideration. The appeals board also found that Capital Builders did not show substantial prejudice or irreparable harm and therefore denied the removal petition.
The Court of Appeal issued a writ of review on July 18, 2016. Simultaneously, it requested briefing on whether the appeals board’s decision was a final order, whether the appeals board’s decision is reviewable by way of a writ of review, and whether the Alvarez decision’s implied conclusion regarding reviewability was correct.
The appeals board responded by underscoring that the WCJ’s order was “‘without prejudice,’” supporting the conclusion that it was an interim procedural decision. Gaona replied by agreeing that the WCJ’s order was an “interim procedural discovery order that ha[d] no impact on the rights and liabilities of either party . . . .”
Capital Builders filed a reply contending that all decisions of the appeals board are subject to review by the appellate courts.
The Court of Appeal agreed that the ruling was not a final order and not subject to appeal,and dismissed the petition for writ of review in the published case of Capitol Builders Hardware v WCAB (Gaona).
Principally, because workers’ compensation proceedings are to be expeditious, inexpensive, and “‘without encumbrance of any character,’” certain threshold issues, if finally determined, qualify as final orders. (Safeway, supra, 104 Cal.App.3d at p. 533.) Examples of threshold issues are whether the injury arises out of and in the course of employment, the territorial jurisdiction of the appeals board, the existence of an employment relationship or statute of limitations issues. (Safeway, supra, at p. 533 & fn. 4.) Such issues, if finally determined, “may avoid the necessity of further litigation” (Id. at p. 534) and hence render workers’ compensation litigation more expeditious and inexpensive.
The appeals board dismissed the petition for reconsideration and denied the petition for removal. Because these orders leave issues for future consideration (Lyon v. Goss (1942) 19 Cal.2d 659, 670), under the usual understanding of the concept of a final judgment or order, they are not final. (Maranian, supra, 81 Cal.App.4th at p. 1075.)
These orders also do not qualify as orders finally disposing of threshold issues in workers’ compensation practice. The underlying issue, i.e., whether the communication was or was not ex parte and therefore prohibited by subdivision (g) of section 4062.3, will not avoid the necessity of further litigation.