James Ozaeta, vs. Royal Custom Designs; State Compensation Insurance Fund,

ROYAL CUSTOM DESIGNS; STATE COMPENSATION INSURANCE FUND, JAMES OZAETA, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAJAMES OZAETA, Applicant,vs.ROYAL CUSTOM DESIGNS; STATE COMPENSATION INSURANCE FUND, Defendants.Case No. ADJ349209 (AHM 0091529)OPINION AND ORDER DENYING PETITION FOR RECONSIDERATION            Defendant, State Compensation Insurance Fund (SCIF), on behalf of its insured, Royal Custom Designs, seeks reconsideration of the Amended Findings and Award, issued October 6, 2009, in which a workers’ compensation administrative law judge (WCJ) found applicant, James Ozaeta, sustained an industrial injury on October 5, 2001, to his back and psyche, resulting in 93% permanent disability, without apportionment. The WCJ concluded applicant was entitled to an unapportioned award in the absence of “persuasive evidence supporting apportionment in accordance with correct legal principles.” The WCJ further denied defendant’s post-trial request to withdraw from its stipulation that applicant in fact sustained injury to his psyche.            Defendant contests the WCJ’s determination on the following grounds. Defendant first asserts the WCJ erred in failing to follow the apportionment determination of Dr. Jae Chon, applicant’s treating orthopedist, to apportion his 40% of the permanent disability from his back to pre-existing degenerative disc disease and spondylolisthesis. Next, defendant argues that applicant’s claim for injury to his psyche is barred under Labor Code section 3208.3(d), and despite defendant’s stipulation to that injury, not only should defendant be excused from this stipulation due to a mutual mistake of fact, but the Appeals Board lacks jurisdiction to award compensation of defendant’s assertion, post-trial, that applicant , did not work the requisite six months. Finally, defendant contends applicant’s lien for reimbursement for his vocational rehabilitation expert expense should be disallowed.            Applicant has filed an answer to

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