Filed 11/16/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CAPITAL BUILDERS HARDWARE, INC.,

 Petitioner,

v.

WORKERS’ COMPENSATION APPEALS 

BOARD,

Respondent;

ROBERT GAONA,

 Real Party in Interest.

 No. B271987

 (W.C.A.B. Nos. ADJ7170139 &

 ADJ7176930)

PROCEEDINGS to review a decision of the Workers’ Compensation Appeals 

Board. Annulled and remanded.

Stockwell, Harris, Woolverton & Muehl, David R. Erwin and George Woolverton 

for Petitioner.

John F. Shields for Respondent.

Graiwer & Kaplan, Gilbert Katen and Borris Vernik for Real Party in Interest.

_________________________

The applicant and real party in interest, Robert Gaona (Gaona), claimed industrial 

injury and filed a workers’ compensation claim. Following the circulation of a medical 
2

report, his employer, petitioner Capital Builders Hardware, Inc. (Capital Builders), 

objected to the admissibility of the report and requested that it be stricken. The workers’ 

compensation judge (WCJ) denied Capital Builders’s motions “without prejudice.” 

Capital Builders appealed the decision of the WCJ to the Workers’ Compensation 

Appeals Board (appeals board) by filing a petition for removal and a petition for 

reconsideration. The appeals board dismissed and denied those petitions.

Capital Builders now seeks writ review in the Court of Appeal. At issue is 

whether the appeals board’s order is reviewable. We conclude that it is not. It is wellestablished that a petition for writ of review may be sought only from a final order or 

decision of the appeals board. (Lab. Code, §§ 5900, 5901;

1 Maranian v. Workers’ Comp. 

Appeals Bd. (2000) 81 Cal.App.4th 1068, 1074 (Maranian).) Here, the appeals board’s 

order is not final. To the extent Alvarez v. Workers’ Comp. Appeals Bd. (2010) 187 

Cal.App.4th 575 (Alvarez) suggests that either the WCJ’s order or the appeals board’s 

order is reviewable by writ of review, we disagree.

Accordingly, we annul the writ of review and remand the case to the appeals 

board.

FACTUAL AND PROCEDURAL BACKGROUND

Gaona claimed industrial injury. He was evaluated by Dr. Sherry Mendelson, the 

agreed medical evaluator (AME), 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. 

1 All further statutory references are to the Labor Code unless otherwise indicated.
3

The WCJ denied Capital Builders’s petition to strike “without prejudice.”

Capital Builders petitioned for removal or in the alternative for reconsideration.2

As is relevant here, 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 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. 

We issued a writ of review on July 18, 2016. Simultaneously, we 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. 

DISCUSSION

A. Writs of review and finality

It is settled that writs of review issue only to review final decisions, orders or 

award of the appeals board. (Maranian, supra, 81 Cal.App.4th at p. 1074; Safeway 

Stores, Inc. v. Workers’ Comp. Appeals Bd. (1980) 104 Cal.App.3d 528, 532 (Safeway), 

citing, inter alia, Gumilla v. Industrial Acci. Com. (1921) 187 Cal. 638, 639–640; 

2 Removal is an extraordinary remedy for review of nonfinal orders and is denied 

absent substantial prejudice or irreparable harm. (Cortez v. Workers’ Comp. Appeals Bd. 

(2006) 136 Cal.App.4th 596, 599–600.) On removal, the petitioner must also 

demonstrate that reconsideration will not be an adequate remedy after issuance of a final 

order, decision or award. (Cal. Code Regs., tit. 8, § 10843, subd. (a).) Reconsideration is 

the procedural mechanism to obtain review by the appeals board of a final order, decision 

or award made by a WCJ. (§ 5902.) 
4

2 Hanna, Cal. Law of Employee Injuries and Workers’ Compensation (rev. 2d ed.) 

§ 34.10[2], p. 34-9; §§ 5900, 5901, 5950.)

Principally, because workers’ compensation proceedings are to be expeditious, 

inexpensive, and “‘without incumbrance of any character,’”

3 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. 

B. The appeals board’s orders in this case

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.4 (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.

C. Alvarez did not involve a final order

3 California Constitution, article XIV, section 4.

4 “It is not the form of the decree but the substance and effect of the adjudication 

which is determinative. As a general test, which must be adapted to the particular 

circumstances of the individual case, it may be said that where no issue is left for future 

consideration except the fact of compliance or noncompliance with the terms of the first 

decree, that decree is final, but where anything further in the nature of judicial action on 

the part of the court is essential to a final determination of the rights of the parties, the 

decree is interlocutory.” (Lyon v. Goss, supra, 19 Cal.2d at p. 670.)
5

All parties, as well as this court in its request for additional briefing, have raised 

Alvarez as potential authority for the proposition that review is authorized of a decision 

regarding ex parte communications during discovery. 

In Alvarez, a panel qualified medical examiner (PQME) telephoned defense 

counsel and requested copies of records that the PQME could not locate. (Alvarez, 187 

Cal.App.4th at p. 582.) Defense counsel advised the applicant’s counsel of the 

communication initiated by the PQME. (Ibid.) The applicant’s counsel thereafter 

asserted that defense counsel violated section 4062.3’s prohibition against ex parte 

communications with a PQME. (Alvarez, supra, at p. 582.) 

The WCJ found that there was no improper ex parte communication between 

defense counsel and the PQME, and the appeals board denied reconsideration. (Alvarez, 

supra, 187 Cal.App.4th at pp. 583–584.)

The Alvarez court did not expressly address the preliminary issue of reviewability. 

Instead, it implicitly recognized that the issue was reviewable by reversing the appeals 

board decision that the communication was not prohibited. (Alvarez, supra, 187 

Cal.App.4th at pp. 585–586.)

To the extent the Alvarez court reached the merits of the issue before it, without 

determining whether the appeals board’s decision was reviewable, we respectfully 

disagree with Alvarez. The appeals board’s decision in that case was not a final order 

under any view of finality. It left a great number of issues for future judicial 

consideration and decision. (Lyon v. Goss, supra,19 Cal.2d at p. 670.) Moreover, the 

subject matter of the underlying issue, i.e., whether the communication was ex parte, did 

not pose a threshold issue. An unsuccessful objection to a medical report does not lead 

directly to the final termination of the workers’ compensation proceedings.

Since the appeals board’s order reviewed by the Court of Appeal in Alvarez was 

not a final order, we conclude that the reviewing court in Alvarez erred in issuing a writ 

of review.
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D. Request for attorney’s fees

The answer in response to the petition requested attorney’s fees pursuant to section 

5801. Attorney’s fees may be awarded by the appeals board if the reviewing court finds 

that there was no reasonable basis for the petition. (§ 5801.) In such a case, the 

reviewing court “shall remand the cause to the appeals board for the purpose of making a 

supplemental award awarding to the injured employee or his attorney . . . a reasonable 

attorney’s fee for services rendered in connection with the petition for writ of review.” 

(§ 5801.) 

Although there was no final order in this case that warranted a petition for a writ 

of review, in light of Alvarez, it was not unreasonable for Capital Builders to have filed 

the petition. Gaona’s request for attorney’s fees is therefore denied.

DISPOSITION

The writ of review issued on July 18, 2016, is annulled and the case is remanded 

to the appeals board.

CERTIFIED FOR PUBLICATION.

 _________________________, Acting P. J.

ASHMANN-GERST

We concur:

_________________________, J. _________________________, J.

 CHAVEZ HOFFSTADT