Home Depot USA, Inc., Permissibly Self-Insured, Adjusted by Helmsman Management Services Epifanio Rodriguez WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAEPIFANIO RODRIGUEZ, Applicant,vs.HOME DEPOT USA, INC., Permissibly Self-Insured, Adjusted ByHELMSMAN MANAGEMENT SERVICES, Defendant.Case No. ADJ1544463 (SAC 0339686)OPINION AND ORDER GRANTING RECONSIDERATION AND DECISIONAFTER RECONSIDERATION Defendant seeks reconsideration of the Findings and Award issued by a workers’ compensation administrative law judge (WCJ) on March 9, 2010, wherein the WCJ found that applicant, while employed as a warehouseman on July 22, 2004, sustained industrial injury to his back and left leg, causing 100% permanent and total disability. The WCJ also found that applicant’s permanent disability benefits commence on September 26, 2007, and should be increased pursuant to Labor Code section 4659(c)1 effective January 1, 2004. Defendant contends the WCJ erred in finding that the section 4659(c) cost of living adjustment (COLA) commences on January 1, 2004, arguing that the issue should be deferred until the California Supreme Court issues its decision in Duncan v. Workers’ Comp. Appeals Bd. and X.S. 2010 Cal. LEXIS 2255 (filed March 24, 2010) (Duncan). We have considered the petition for reconsideration and we have reviewed the record in this matter. Applicant filed an answer. The WCJ has filed a Report and Recommendation on Petition for Reconsideration (Report), recommending that the petition be granted to defer the issue 1 Unless otherwise stated, all further statutory references are to the Labor Code. , of when section 4659 COLA increases commence, pending the California Supreme Court’s decision in Duncan. For the reasons set forth herein and in the WCJ’s Report, we will grant reconsideration, rescind Finding of Fact Number 3, and return the matter to the trial level as recommended by the WCJ to await the decision in Duncan. Th
