David Coe, vs. Professional Association Of Diving Instructors; Mission Insurance Company, Do Ciga Workers Compensation Claims,

In this case, David Coe, an employee of the Professional Association of Diving Instructors, sought reconsideration of a May 27, 2009 Finding and Order, wherein the workers' compensation administrative law judge (WCJ) found that Coe did not sustain his burden of proving that he was incompetent during the entire period from his injury to the date of filing his claim and that, therefore, his claim was barred by the statute of limitations. The Appeals Board granted the petition for reconsideration, affirming the WCJ's decision, but deferring the issue of Coe's attorney's entitlement to a Labor Code section 5710 fee. The Board found that Coe had failed to meet his burden of proving incompetency due to lack of

PROFESSIONAL ASSOCIATION OF DIVING INSTRUCTORS; MISSION INSURANCE COMPANY, do CIGA WORKERS COMPENSATION CLAIMS, DAVID COE, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIADAVID COE, Applicant,vs.PROFESSIONAL ASSOCIATION OF DIVING INSTRUCTORS; MISSION INSURANCE COMPANY, do CIGA WORKERS COMPENSATION CLAIMS, Defendant(s).Case No. ADJ302560 (LAO 0733786)OPINION AND ORDER GRANTING PETITION FOR RECONSIDERATION AND DECISION AFTER RECONSIDERATION            Applicant seeks reconsideration of the May 27, 2009 Finding and Order, wherein the workers’ compensation administrative law judge (WCJ) found that applicant did not sustain his burden of proving that he was incompetent during the entire period from his injury to the date of filing his claim and that, therefore, his claim is barred by the statute of limitations. The parties had stipulated that applicant, while employed as a scuba diving instructor on April 29, 1984, sustained industrial injury to his head, multiple orthopedic injuries, and psyche.            Applicant contends that the WCJ insufficiently considered the evidence and arrived at an incorrect conclusion regarding competency, that defendant is estopped from asserting that applicant is incompetent, that the WCJ did not address the other issues relating to the statute of limitations, and that he did not make a decision regarding applicant’s attorney’s entitlement to a Labor Code section 5710 fee.            We have considered the Petition for Reconsideration and defendant’s Answer, and we have reviewed the record in this matter. The WCJ prepared a Report and Recommendation on Petition for Reconsideration (Report), recommending that the petition be denied. ,             For the reasons discussed below, we will grant applicant’s petition for reconsideration solely to defer the issue of the Labor Code section 5710 fee and otherwise affirm.            This case has been before us multiple times. On July 25, 2007, we rescinded the WCJ’s May 8, 2007 finding

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