Atlas Ornamental; State Compensation Insurance Fund Donald Bouchard WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIADONALD BOUCHARD, Applicant,vs.ATLAS ORNAMENTAL;STATE COMPENSATION INSURANCE FUND, Defendant(s).Case No. ADJ1028901 (MON 0336849)OPINION AND ORDER DISMISSING PETITION FOR RECONSIDERATION Defendant seeks reconsideration of the Findings of Fact issued February 8, 2010, wherein I the workers’ compensation administrative law judge (WCJ) found that applicant “sustained injury arising out of and in the course of employment.” The WCJ explained in the Opinion on Decision: “The sole question presented to the Court is whether the applicant having been injured in a vehicular accident on the way to a work site sustained injury arising out of and occurring within the scope of employment. Based upon the credible testimony of the applicant and the failure of defendant to provide the independent witness to refute applicant’s allegation that he was asked by the independent witness to go to the job site that morning, the court draws an adverse inference from the defendant’s inability to produce the witness and finds applicant sustained injury arising out of and in the course of employment.” Defendant contends that the WCJ erred by finding that applicant sustained an industrial injury arguing: (1) that there is no substantial evidence which supports applicant’s claim of industrial injury; (2) that applicant “failed to meet his burden of proof to show that he was not on an ordinary commute to work by showing an exception to the going and coming exclusionary rule applied”; (3) applicant’s employer, Christopher Tuppan, testified that there was no employment , reason why applicant needed to go to the job site on the date of injury; and (4) that defendant’s petition is timely because defendant was not “served with the WCJ’s decision.” In the Report and Recommendation on Petition for Reconside
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