State Of California, Board Of Equalization, State Compensation Insurance Fund, Et Al Erma Lester WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAERMA LESTER, Applicantvs.STATE OF CALIFORNIA, BOARD OF EQUALIZATION; STATE COMPENSATION INSURANCE FUND, et al., Defendant(s).Case Nos.ADJ1329427 (MON 0225201)ADJ4442180 (MON 0225200)OPINION AND ORDER GRANTING RECONSIDERATION AND DECISION AFTER RECONSIDERATION Defendam seeks reconsideration of lhe “Post-Rcconsidcraiion findings and Award and Order” of August 25. 2010. in which the workers’ compensation judge (WCJ) found that on October 16. 1992. and dui me jhe period March 1988 through January 2. 1996. applicant sustained industrial injury to her bilateral upper extremities and back, that applicant’s industrial injuries were the causative agent in the resulting diagnosis of fibromyalgia, that applicant is entitled to a permanent disability award of 100%. that applicant is entitled to an undivided award for the combined permanent disability caused by the two industrial injuries, and that there is no basis for finding linn any portion of applicant’s permanent disability is due to non-industrial factors. The WCJ also allowed a fee* to applicant’s attorney, equivalent to 15% of lhe pteseni value of the permanent disability award. Defendant contends in substance, that the April 20. 2010 deposition of Dr. Nagelbcrg. the Independent Medical Evaluator (IME), is inadmissible because it occurred after the close of discovery, that the deposition is not substantial evidence, that the WCJ ened in relying on the deposition to combine the disabilities caused by the two injuries, that applicant is entitled to tw-o 50% permanent disability awards for her fibromyalgia hased on the May 28. 2008 deposition of Dr. N’agclberg. and that the attorney’s fee should be bused on two I’D awards of 50% , Applicant filed an answer. The WCJ submitted a Report and Recommendation. Wc adopt an
