Workers’ Compensation · Primary-source case analysis

Miller: Record Development Is an Interlocutory Order, Not a Final Decision

By Aneeta Mishra and Timothy Chan

Published September 11, 2026

The parties wanted the WCAB to decide whether a claimed dependent qualified for death benefits. The workers’ compensation judge instead vacated earlier findings, deferred the dependency issue, and ordered further development of the record. Both sides sought immediate appellate review.

Reconsideration requires a final order

Labor Code sections 5900 through 5903 permit reconsideration of an order that determines a substantive right or liability or resolves a threshold issue fundamental to the claim. Intermediate procedural and evidentiary rulings do not qualify.

Further record development was interlocutory

The judge had not decided dependency or another threshold issue. Directing the parties to develop evidence and deferring findings kept the merits open, so the WCAB treated the challenge under the narrower removal standard.

Removal is an extraordinary remedy

A petitioner must show significant prejudice or irreparable harm and must also show that later reconsideration would not be adequate. Disagreement with the need for additional evidence did not satisfy those requirements.

The parties retained a later remedy

After the judge develops the record and issues a final decision, an aggrieved party may seek reconsideration. Denial of immediate review therefore did not decide the dependency claim for either side.

Key takeaways

• Classify the challenged ruling as final or interlocutory before choosing a petition.
• Use reconsideration for a final order deciding rights, liabilities, or a threshold issue.
• For removal, identify concrete irreparable harm and explain why later reconsideration is inadequate.
• Do not treat an order developing the record as a merits determination.