Lemus Saldana, Esther, Applicant v. TAO TAI HOMES CORPORATION; INSURANCE COMPANY OF THE WEST, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
ESTHER LEMUS SALDANA (decedent);
FELIPE SALDANA RODRIGUEZ and
FELIPE SALDANA (dependents), Applicants
vs.
TAO TAI HOMES CORPORATION;
INSURANCE COMPANY OF THE WEST, Defendants
Adjudication Number: ADJ129100871
Oakland District Office
OPINION AND ORDER DISMISSING
PETITION FOR RECONSIDERATION AND
DENYING PETITION FOR REMOVAL
Defendant 	seeks 	reconsideration 	of 	the 	Opinion 	and 	Order 	Granting 	Petition 	for
Reconsideration 	and 	Decision 	after 	Reconsideration 	(Decision) 	issued 	by 	the 	Workers’
Compensation Appeals Board (Appeals Board) on September 2, 2025, wherein the Appeals Board
granted applicant’s Petition for Reconsideration; rescinded the Findings of Fact (Findings) issued
on May 14, 2025 by a workers’ compensation administrative law judge (WCJ); and, returned this
matter to the trial level for further proceedings consistent with the Decision.
Defendant contends that there was no substantial evidence of a cumulative injury found in
the inter vivos claim filed by decedent and therefore, the death case application for adjudication
filed by dependents is barred by Labor Code2 section 5406, subdivision (b) (section 5406(b))
because it was filed more than 240 weeks from the accepted and specific date of injury of February
4, 2019.
Applicant did not file an answer to the Petition for Reconsideration. The WCJ filed a brief
Report and Recommendation on Petition for Reconsideration (Report) but did not address the
merits of the petition as it challenges a decision of the Appeals Board.
1 ADJ12910087 is the adjudication number that was assigned to decedent’s inter vivos application for adjudication of claim. The
Application for Adjudication of Claim (Death Case) filed on January 2, 2024 by dependents Felipe Saldana Rodriguez and Felipe
Saldana (dependents or applicants), has yet to be assigned a separate adjudication number, but this decision is issued in both cases.
2 All further references are to the Labor Code unless otherwise noted.

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We have reviewed the record in this case, and the allegations of the Petition for
Reconsideration. We dismiss the Petition for Reconsideration as the Decision was a non-final
order. We treat defendant’s petition as a Petition for Removal and for the reasons set forth below,
we deny Removal.
I.
Former Labor Code 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, Labor Code 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.
(2) 	For purposes of paragraph (1), service of the accompanying report,
pursuant to subdivision (b) of Section 5900, shall constitute providing
notice.
Under Labor Code 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 October 13,
2025, and 60 days from the date of transmission is December 12, 2025. This decision is issued by
or on December 12, 2025, so that we have timely acted on the petition as required by Labor Code
section 5909(a).
Labor Code 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

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Board to act on a petition. Labor Code 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 26, 2025, and the
case was transmitted to the Appeals Board on October 13, 2025. Service of the Report and
transmission of the case to the Appeals Board did not occur on the same day. Thus, we conclude
that service of the Report did not provide accurate notice of transmission under Labor Code section
5909(b)(2) because service of the Report did not provide actual notice to the parties as to the
commencement of the 60-day period on October 13, 2025.
No other notice to the parties of the transmission of the case to the Appeals Board was
provided by the district office.3 Thus, we conclude that the parties were not provided with accurate
notice of transmission as required by Labor Code section 5909(b)(1). While this failure to provide
notice does not alter the time for the Appeals Board to act on the petition, we note that as a result
the parties did not have notice of the commencement of the 60-day period on October 13, 2025.
II.
A petition for reconsideration is only properly taken from a “final” order, decision, or
award. (Lab. Code, §§ 5900(a), 5902, 5903.) “An order, decision, or award of the WCAB or
workers’ compensation judge is final for purposes of a petition for reconsideration where it deter-
mines any substantive right or liability of those involved in the case.” (Rymer v. Hagler (1989)
211 Cal. App. 3d 1171, 1180; see Safeway Stores, Inc. v. Workers’ Comp. Appeals Bd. (Pointer)
(1980) 104 Cal. App. 3d 528, 534–535 [45 Cal.Comp.Cases 410].) In other words, an order is final
when it determines a “threshold” issue 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. (Maranian, supra, 81 Cal.App.4th
at p. 1075; Rymer, supra, 211 Cal.App.3d at p. 1180.)
The Decision rescinded the WCJ’s Findings and returned this matter to the trial level for
further proceedings. An order returning the case to the trial level for further hearing is a procedural
3 We note that the WCJ erroneously stated that this matter was transmitted to the Appeals Board simultaneously with
the service of the Report. (Report, p. 2.)

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order that does not finally determine any issue, whether related to the substantive rights or
liabilities of the parties or to a threshold issue, and is therefore not a final order subject to review.
(Gumilla v. Industrial Acci. Com. (1921) 187 Cal. 638, 639-640; Hikida v. Workers’ Comp. Comp.
Appeals Bd. (2000) 12 Cal. App. 5th 1249, 1255 [82 Cal.Comp.Cases 679]; see Pointer, supra,
104 Cal.App.3d at p. 534.) In other words, defendant is premature in its request for reconsideration
of whether the death claim application filed by dependents is barred by section 5406(b).
Accordingly, we dismiss the Petition for Reconsideration because the Decision is not a
final order.
III.
Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v.
Workers’ Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155,
157, fn. 5]; Kleemann v. Workers’ Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70
Cal.Comp.Cases 133, 136, fn. 2].) 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, § 10843(a); see also Cortez, supra; Kleemann, supra.) In addition, 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, § 10843(a).)
In this matter, defendant appears to argue that if the cause of an injured workers’ death is
not somehow developed and proven prior to the filing of a death claim application, then the
dependents who file the death claim are somehow legally precluded from developing the record as
to the cause of decedent’s death once the application is filed. (Petition for Reconsideration, p. 4.)
For obvious reasons of law and logic, we disagree. We reiterate that an inter vivos claim and a
death claim are separate “transactions,” i.e., different injuries under section 5303. (See Glavich v.
Industrial Acci. Com. (1941) 44 Cal.App.2d 517, 521-523 [6 Cal.Comp.Cases 123]; Decision, p.
7.)
Consequently, the cause of the injury claimed in the inter vivos case may or may not be the
cause of the decedent’s death. As stated in the Decision, “[t]he only evidence addressing
decedent’s cause of death is the death certificate, which we conclude is not substantial medical
evidence as to the cause of decedent’s death. (Def. Exh. A, Death Certificate.)” (Decision., p. 6.)

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The other medical evidence in the record was produced in decedent’s inter vivos
case prior to her death and raises more questions than certainty regarding the
cause of her impairment. (See eg., Def. Exh. J, Deposition of Panel Qualified
Medical Evaluator in the inter vivos case, Victor Kerenyi, D.C., taken June 21,
2021, pp. 13-15, 17-18, 34, 38-39, 41-42, 43-45, 56, 61-62, 65-69 [QME found
decedent credible; found decedent medically ineligible to engage in gainful
employment; but, was unable to articulate the cause of decedent’s increased
impairment over time].)
(Ibid.)
Therefore, we were compelled to rescind the Findings and return this matter to the trial
level for further proceedings. Given that a death claim application is a new claim of injury
involving different applicants, no prejudice or harm can result from allowing the death claim to
proceed including the development of the record in that claim as to the cause of decedent’s death,
which again, may or may not have been caused by the same injury alleged, accepted, and/or
established in decedent’s inter vivos case. (See Decision, p. 7 [direction to the parties to obtain a
separate adjudication file and number for the death case].) Indeed, to prevent the death claim from
proceeding as the separate claim that it is would be an obvious violation of due process for all
parties.
Next, we reassure defendant that due to the lack of evidence in the death claim action, the
Decision could not have and did not make any finding of fact as to whether dependents’ death
claim application is or is not barred by section 5406(b). (Decision, p. 7 [“Although we are unable
to reach the issue of whether the death case Application was filed within 240 weeks of the “date
of injury” under section 5406(b)...”].) We note that the Decision clarified the decision in Berkebile
v. Workers’ Comp. Appeals Bd. (1983) 144 Cal.App.3d 940 [48 Cal.Comp.Cases 438], for the
benefit of the WCJ. (Ibid.) However, we could not have and did not apply the legal standards
associated with a determination of whether a death claim application was timely filed under section
5406(b) in this case. (Ibid.)
Therefore, no prejudice or harm could have resulted from the Decision as to the issue of
whether the death claim application is barred by section 5406(b), or how the applicable legal
jurisprudence will be applied to the evidence if and/or once developed in the death claim.
Accordingly, we dismiss the Petition for Reconsideration as the Decision is not a final
order subject to reconsideration and treat the petition as a Petition for Removal. We deny removal
because defendant states no prejudice or harm, and certainly no substantial prejudice or irreparable

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harm resulting from the recission of the Decision or the return of these matters to the trial level for
further proceedings as explained by the Decision and consistent with the Decision.
For the foregoing reasons,
IT IS ORDERED that defendant’s Petition for Reconsideration of the Opinion and Order
Granting Petition for Reconsideration and Decision after Reconsideration issued by the Workers’
Compensation Appeals Board on September 2, 2025, is DISMISSED.
IT IS FURTHER ORDERED that defendant’s Petition for Removal of Opinion and
Order Granting Petition for Reconsideration and Decision after Reconsideration issued by the
Workers’ Compensation Appeals Board on September 2, 2025 is DENIED.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ KATHERINE A. ZALEWSKI, CHAIR
I CONCUR,
/s/ LISA A. SUSSMAN, DEPUTY COMMISSIONER
/s/ JOSEPH V. CAPURRO, COMMISSIONER
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
December 4, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
FELIPE SALDANA RODRIGUEZ
FELIPE SALDANA
LAW OFFICES OF KNOPP & PISTIOLAS
D’ANDRE LAW, LLP
AJF/mc I certify that I affixed the official seal of
the Workers’ Compensation Appeals
Board to this original decision on this
date. 	o.o