BRUCE AYERS vs. GRANITE ROCK COMPANY; ZURICH AMERICAN INSURANCE COMPANY

GRANITE ROCK COMPANY; ZURICH AMERICAN INSURANCE COMPANY BRUCE AYERS WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIABRUCE AYERS, Applicant,vs.GRANITE ROCK COMPANY; ZURICH AMERICANINSURANCE COMPANY, Defendants.Case No. ADJ3896064 (SAL 0121108)ORDER DENYING RECONSIDERATION            We have considered the allegations of the 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 for the reasons stated in said report which we adopt and incorporate, we will deny reconsideration.            Defendant’s first contention is: “Whether the applicant took sleep medication just prior to his sleep study being administered is a material fact and question that remains unanswered. This issue must be resolved as the sleep study’s validity and veracity affects all other evidence of the applicant’s earning capacity and ability to be employed.” (Petition, at 4:4-4:6.)            We disagree with defendant that a question remains of whether applicant took sleep medication just prior to his sleep study. At page 6 of his Report, the WCJ states “there is no evidence contrary to the testimony of the applicant that he self-administered the medications … before the sleep study.” In making this statement, the WCJ implicitly finds applicant’s testimony to be credible. (See Garza v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318 [35 Cal.Comp.Cases 500, 505].) Therefore, the issue of whether applicant took sleep medication prior to his sleep study has been resolved in the affirmative.            Moreover, as the WCJ’s Report points out, he issued a March 14, 2012 order directing the parties to obtain the records of the sleep study performed at the University of California San Francisco (UCSF). ,             However, as defendant’s petition acknowledges, the UCSF “medical records do not document whether or not the applicant ingested sleep medication just p

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