Fresno Unified School District, Permissibly Self-Insured, David Austin, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIADAVID AUSTIN,Applicants,vs.FRESNO UNIFIED SCHOOL DISTRICT, Permissibly Self-Insured,DefendantCase No. ADJ9931812ADJ9931813(Fresno District Office)OPINION AND ORDER DENYING PETITION FOR RECONSIDERATION Applicant seeks reconsideration of a workers’ compensation administrative law judge’s (WCJ) Findings and Order of January 23, 2017, wherein it was found that applicant did not sustain industrial injury while employed as a custodian on August 14, 2014 (ADJ9931813) or during a cumulative period ending on August 14, 2014 (ADJ9931812). In these matters, applicant contends that he sustained industrial injury to his toes, feet and legs. Applicant contends that the WCJ erred in finding that applicant did not sustain industrial injury, arguing that the injury was presumed industrial pursuant to Labor Code section 5402, and that the reporting of qualified medical evaluator physiatrist Paul Ky, D.O., who the WCJ relied upon in making his findings, did not constitute substantial medical evidence. We have received an Answer and the WCJ has filed a Report and Recommendation on Petition for Reconsideration (Report). We will deny reconsideration for the reasons stated by the WCJ in his Report. With regard to applicant’s argument that there was a presumption that the injury was industrial, we note that pursuant to Labor Code section 5402(b) a presumption of compensability arises only if a claim form which meets the requirements of section 5401 is filed with an employer, and liability is not rejected within 90 days of the filing of the claim form. (Honeywell v. Workers’ Comp. Appeals_Bd. (Wagner) (2005) 35 Cal.4th 24 [70 Cal.Comp.Cases 97].) As noted by the WCJ in the Report, no evidence was presented that a DWC-1 claim form was filed with the defendant. Accordingly, a presumption of compensability did not arise. ,
