Joey M. Costa, vs. Hardy Diagnostic And State Compensation Insurance Fund,

(GRO 0031810)In this case, the State Compensation Insurance Fund sought reconsideration of the decision issued by the Appeals Board on January 5, 2009, in which they reversed the worker's compensation administrative law judge (WCJ) to allow reimbursement for the report and testimony of Ann Wallace, Ph.D., in the amount of $975.00, pursuant to Labor Code section 5811. The Appeals Board denied the petition for reconsideration, noting that the costs for vocational rehabilitation expert evidence are reimbursable if they were reasonable and necessary at the time they were incurred, and that the report and testimony of Ms. Wallace were not so flawed as to render them worthless.

HARDY DIAGNOSTIC and STATE COMPENSATION INSURANCE FUND, JOEY M. COSTA, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAJOEY M. COSTA, Applicant,vs.HARDY DIAGNOSTIC and STATECOMPENSATION INSURANCE FUND, Defendant(s).Case No. ADJ4640837 (GRO 0031810)OPINION AND ORDER DENYING PETITION FOR RECONSIDERATION            Defendant State Compensation Insurance Fund seeks reconsideration of the decision issued by the Appeals Board on January 5, 2009, in which we reversed the worker’s compensation administrative law judge (WCJ) to allow reimbursement for the report and testimony of Ann Wallace, Ph.D., in the amount of $975.00, pursuant to Labor Code section 5811. Defendant contends that (1) the Appeals Board failed to properly set forth the reasons they considered the WCJ’s determination to be in error; (2) the WCJ had correctly determined that Ms. Wallace’s opinions were so flawed they were not probative on any pending issue; and (3) assuming Ms. Wallace was entitled to any reimbursement, it was only at the rate of $65.00 per hour. For the reasons discussed below, we will deny reconsideration and affirm our prior decision.            Initially, we note that in the first of two en banc decisions in this matter, “Costa F’ (2006) 71 Cal. Comp. Cases 1797, the Appeals Board determined, among other things, that Ms. Wallace was not entitled to full reimbursement for her report, i.e., only to the extent that “some of her work in preparing that report may have provided a foundation for her testimony,” because her report had been properly excluded from evidence. However, subsequent to that decision, the Appeals Board’s second en banc decision in “Costa IT’ (2007) 72 Cal. Comp. Cases 1492, and the WCJ’s , determination here, the Court of Appeal held in Barr v. Workers’ Comp. Appeals Bd. (2008) 164 Cal.App.th 173, 178 [73 Cal.Comp.Cases 7631 that, pursuant to section 5811, the Appeals Board has discretion to award costs for a vocational rehabilitation expert’s report regardless

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