Martinez Zavala, Esmeralda, Applicant v. WKS RESTAURANT GROUP; ARCH INSURANCE COMPANY administered by Sedgwick Claims Management Services, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
ESMERALDA MARTINEZ ZAVALA, Applicant
vs.
WKS RESTAURANT GROUP;
ARCH INSURANCE COMPANY administered by Sedgwick Claims Management
Services, Defendants
Adjudication Number: ADJ19582218
Van Nuys District Office
OPINION AND ORDER
DISMISSING PETITION FOR
RECONSIDERATION
AND DENYING PETITION
FOR REMOVAL
We 	have 	considered 	the 	allegations 	of 	the 	Petition 	for 	Removal 	& 	Petition 	for
Reconsideration and the contents of the report of the workers’ compensation administrative law
judge (WCJ) with respect thereto. Based on our review of the record, and based upon the WCJ’s
analysis of the merits of the petitioner’s arguments in the WCJ’s report, we will dismiss the petition
to the extent it seeks reconsideration and deny it to the extent it seeks removal.
I.
Preliminarily, we note that former section 5909 provided that a petition for reconsideration
was deemed denied unless the Appeals Board acted on the petition within 60 days from the date
of filing. 	(Lab. Code, § 5909.) 	Effective July 2, 2024, section 5909 was amended to state in
relevant part that:
(a) 	A petition for reconsideration is deemed to have been denied by the appeals
board unless it is acted upon within 60 days from the date a trial judge transmits a
case to the appeals board.
(b)
(1) 	When a trial judge transmits a case to the appeals board, the trial
judge shall provide notice to the parties of the case and the appeals board.

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(2) 	For purposes of paragraph (1), service of the accompanying report,
pursuant to subdivision (b) of Section 5900, shall constitute providing
notice.
Under section 5909(a), the Appeals Board must act on a petition for reconsideration within
60 days of transmission of the case to the Appeals Board. Transmission is reflected in Events in
the Electronic Adjudication Management System (EAMS). 	Specifically, in Case Events, under
Event Description is the phrase “Sent to Recon” and under Additional Information is the phrase
“The case is sent to the Recon board.”
Here, according to Events, the case was transmitted to the Appeals Board on September
15, 2025 and 60 days from the date of transmission is November 14, 2025. This decision is issued
by or on November 14, 2025, so that we have timely acted on the petition as required by section
5909(a).
Section 5909(b)(1) requires that the parties and the Appeals Board be provided with notice
of transmission of the case. Transmission of the case to the Appeals Board in EAMS provides
notice to the Appeals Board. Thus, the requirement in subdivision (1) ensures that the parties are
notified of the accurate date for the commencement of the 60-day period for the Appeals Board to
act on a petition. Section 5909(b)(2) provides that service of the Report and Recommendation shall
be notice of transmission.
Here, according to the proof of service for the Report and Recommendation by the workers’
compensation administrative law judge, the Report was served on September 15, 2025, and the
case was transmitted to the Appeals Board on September 15, 2025. Service of the Report and
transmission of the case to the Appeals Board occurred on the same day. Thus, we conclude that
the parties were provided with the notice of transmission required by section 5909(b)(1) because
service of the Report in compliance with section 5909(b)(2) provided them with actual notice as
to the commencement of the 60-day period on September 15, 2025.
II.
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; Safeway Stores, Inc. v. Workers’ Comp. Appeals Bd. (Pointer)
(1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v.

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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 [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.
Here, the WCJ’s September 4, 2025 Minute Order taking this matter off calendar is not a
final order. Accordingly, the petition will be dismissed to the extent it seeks reconsideration.
Removal is an extraordinary remedy rarely exercised by the Appeals Board. 	(Cortez v.
Workers’ Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155];
Kleemann v. Workers’ Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70
Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that
substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs.,
tit. 8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); see also Cortez, supra; Kleemann,
supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy
if a final decision adverse to the petitioner ultimately issues. 	(Cal. Code Regs., tit. 8, former §
10843(a), now § 10955(a) (eff. Jan. 1, 2020).) Here, based upon the WCJ’s analysis of the merits
of the petitioner’s arguments, we are not persuaded that significant prejudice or irreparable harm
will result if removal is denied and/or that reconsideration will not be an adequate remedy.
We admonish defense attorney Jimmy Blalock, with the law firm of Davidson, Czuleger
& Blalock, that it is improper to file a Petition for Reconsideration from a clearly non-final order.
Counsel is expected to know the difference between a final and non-final order and seek only the
appropriate remedy. Doing otherwise wastes the resources of the trial level, opposing parties, and
the Appeals Board and may be found to be sanctionable under Labor Code section 5813. Future
compliance with the WCAB’s rules is expected.

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For the foregoing reasons,
IT IS ORDERED that the Petition for Reconsideration is DISMISSED and the Petition
for Removal is DENIED.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ JOSÉ H. RAZO, COMMISSIONER
I CONCUR,
/s/ JOSEPH V. CAPURRO, COMMISSIONER
/s/ KATHERINE WILLIAMS DODD, COMMISSIONER
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
NOVEMBER 14, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
ESMERALDA MARTINEZ ZAVALA
ALI AZARAKHSH
DAVIDSON CZULEGER
PAG/bp
I certify that I affixed the official seal of
the Workers’ Compensation Appeals Board
to this original decision on this date.
BP