Kevin Martinez, vs. John Jackson Masonry, State Compensation Insurance Fund, Zenith Insurance Company,

JOHN JACKSON MASONRY, STATE COMPENSATION INSURANCE FUND, ZENITH INSURANCE COMPANY, KEVIN MARTINEZ, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAKEVIN MARTINEZ, Applicant,vs.JOHN JACKSON MASONRY, STATE COMPENSATION INSURANCE FUND,ZENITH INSURANCE COMPANY, Defendant(s).Case Nos. ADJ3047961 (SAC 0362761)ADJ2039708 (SAC 0362762)OPINION AND DECISION AFTER RECONSIDERATION            We previously granted reconsideration with a notice of intention to dismiss the petition for reconsideration filed by John Jackson Masonry (defendant) as untimely absent a showing of good cause to the contrary, served and filed within fifteen days, which demonstrated that the defendant timely filed its petition at the local WCAB district office in Sacramento as required then by California Code Regulations, title 8, section 10840. By timely response to our notice by a declaration from attorney Jordan T.L. Peters with attachments, defendant has demonstrated that its petition for reconsideration was timely filed on October 9, 2008, at both the local WCAB district office in Sacramento and with us, the Appeals Board in San Francisco. Accordingly, we address the merits of defendant’s contentions.            Defendant challenges the September 15, 2008 Findings, Order and Award of the workers’ compensation administrative law judge (WCJ). The WCJ found that defendant discriminated against Kevin Martinez (applicant) in violation of Labor Code section 132a when it terminated applicant’s employment on December 12, 2006 on the basis that defendant had no more modified work available. ,             Defendant contends that the WCJ erroneously found a violation because (1) applicant did not demonstrate that he was singled out for differential treatment because of his industrial injury; and (2) the WCJ acknowledged but then ignored defendant’s business necessity defense.            Applicant has not filed an answer to the petition. By report and recommendation on defendant’s petition, the WCJ recom

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