ADJ12304191 — California WCAB decision

What the panel ordered

February 25, 2022 Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration affirmed

Petition for reconsideration granted; decision after reconsideration issued affirming prior decision

This docket was decided more than once. Shown here is the latest released decision; we also hold February 25, 2022.

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

ApportionmentApplicant prevailed

Defendant failed to meet its burden of proof regarding non-industrial apportionment; the Appeals Board found 80% permanent disability caused by the injury and affirmed the prior decision.

From the decision · page 1On March 7, 2022, defendant newly aggrieved timely sought reconsideration of our February 25, 2022 Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration. Therein, we granted applicant's Petition for Reconsideration of the August 31, 2021 Findings of Fact, Award, and Order issued by the workers' compensation administrative law judge (WCJ) and, based on the WCJ's Report and Recommendation which we adopted and incorporated as part of our decision, we found that defendant failed to meet its burden of proof regarding non-industrial apportionment and that the injury herein caused 80% permanent disability. We further noted that we had failed to act on applicant's petition within 60 days of its filing on September 20, 2021, through no fault of applicant. Therefore, considering that the Appeals Board's failure to act on the petition was in error, we found that our time to act was tolled

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5908.5

The Appeals Board must set forth an adequate statement of the evidence or reasoning upon which it relies when granting reconsideration.

From the decision · page 2In its Petition for Reconsideration, defendant, citing to multiple unpublished Court of Appeal decisions, contends that the Appeals Board failed to satisfy the requirements of Labor Code section 5908.5 by failing to set forth an adequate statement of the evidence or reasoning upon which we relied and that our decision "was silent as to any legal or evidentiary reasoning in its vacating the trial decision and blind adoption of the Recommendations." Defendant further contends that decision was not timely issued and that our application of the holding in Shipley was in error. Finally, defendant contends that the Appeals Board should have affirmed the WCJ's initial finding of non-industrial apportionment.

Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104

The Appeals Board's failure to act on the petition within 60 days tolled the time to act, consistent with due process rights.

From the decision · page 1On March 7, 2022, defendant newly aggrieved timely sought reconsideration of our February 25, 2022 Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration. Therein, we granted applicant's Petition for Reconsideration of the August 31, 2021 Findings of Fact, Award, and Order issued by the workers' compensation administrative law judge (WCJ) and, based on the WCJ's Report and Recommendation which we adopted and incorporated as part of our decision, we found that defendant failed to meet its burden of proof regarding non-industrial apportionment and that the injury herein caused 80% permanent disability. We further noted that we had failed to act on applicant's petition within 60 days of its filing on September 20, 2021, through no fault of applicant. Therefore, considering that the Appeals Board's failure to act on the petition was in error, we found that our time to act was tolled

ADJ12304191 · July 14, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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