On June 6, 2024, applicant’s attorney John R. Ramirez (SBN 201939) and The Ramirez Firm filed a petition for attorney’s fee pursuant to section 5710, and alleged that he personally represented applicant at her deposition in the case of Latrice Reed vs.County of San Bernardino, permissibly self-insured,and sought payment for 1 hour of preparation time and 1.1 hours of actual deposition time, or 2.1 hours. (Id. at p. 1.) Applicant requested an award at the hourly rate of $425.00 per hour, or $892.50. Thereafter, defendant paid fees at $400.00 per hour, or $840.00.

On June 10, 2024, the workers’ compensation administrative law judge (WCJ) issued an order reducing applicant’s attorney’s hourly rate to $400.00 per hour and ordered defendant to pay $840.00 as a reasonable fee.

On June 11, 2024, applicant filed an objection to the order and a Declaration of Readiness to proceed to a mandatory settlement conference on the issue of section 5710 fees. The matter proceeded to a hearing on August 7, 2024. The WCJ ordered the matter taken off calendar over applicant’s attorney’s objection.

Applicant’s attorney filed a Petition for Reconsideration (which was deemed by the WCAB to be a Petition for Removal) and objected to an Order taking the matter off calendar. Specifically, in the Petition, Mr. Ramirez alleges that he is entitled to the unpaid portion of attorney’s fees under Labor Code3 section 5710 of $52.50; Mr. Ramirez seeks to proceed to a trial on the issue of attorney’s fees.

The WCJ filed a Report recommending that the Petition for Reconsideration be dismissed as the Order taking the matter off calendar was a non-final order. To the extent that the petition seeks removal, the WCJ recommended that the petition be denied as applicant failed to demonstrate irreparable harm or significant prejudice.

This case has not proceeded to an evidentiary hearing.

In its panel decision in the case of Reed v County of San Bernardino – ADJ18725678 (November 2024) – which it characterized as a Significant Panel Decision. (Cal. Code Regs., tit. 8, § 10325(b); see Lab. Code, §§ 5300, 5301, 5302.) the WCAB denied applicant’s Petition.

The WCAB responded that as “we previously stated in our En Banc decision in Ledezma v. Kareem Cart Commissary and Mfg.: A 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, 260 Cal. Rptr. 76; Safeway Stores, Inc. v. Workers’ Comp. Appeals Bd. (Pointer) (1980) 104 Cal. App. 3d 528, 534-535 [163 Cal. Rptr. 750, 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 [97 Cal. Rptr. 2d 418, 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 procedural orders or discovery orders’]; Kramer, supra, at p. 45 [‘[t]he term [‘final’] does not include intermediate procedural orders’].) Such interlocutory decisions include, but are not limited to, pre-trial orders regarding evidence, discovery, trial setting,venue, or similar issues.”

The panel went on to say “Not only did we make clear in Ledezma that orders regarding trial setting are not final orders, but we also made clear that seeking reconsideration of non-final orders is sanctionable. (See generally, id.; see also, Ledezma v. Kareem Cart Commissary and Mfg, (2024) 89 Cal.Comp.Cases 549 (En Banc) [‘ORDER IMPOSING SANCTIONS AND COSTS’].)”

“Here, Mr. Ramirez improperly filed a Petition for Reconsideration in response to a non-final order. However, while the attempt to seek reconsideration was without merit, it does not appear that the Petition was filed for an improper purpose such as halting proceedings at the trial level. That is, Mr. Ramirez’s objective was to proceed to trial as quickly as possible, and all parties have the right to seek such relief as appropriate. Thus, for the purpose of this decision, we will assume that the filing of a petition for reconsideration rather than one for removal was merely a careless error. Accordingly, we do not take up the issue of sanctions at this time.”

Instead, it admonished applicant’s attorney John R. Ramirez (SBN 201939) and The Ramirez Firm that any future petition challenging a non-final order such as an order taking the matter off calendar must be filed as a petition for removal and that this conduct may be subject to sanctions under section 5813 and WCAB Rule 10841 (Cal. Code Regs., tit. 8, § 10421).”