BLAKELEY CONSTRUCTION; STATE COMPENSATION INSlJR,.1.NCE FUND, LUIS M. MARISCAL, WORKERS COMPENSATION APPEALS BOARDSTATE OF CALIFORNIALUIS M. MARISCAL,, Applicant,vs.BLAKELEY CONSTRUCTION; STATE COMPENSATION INSURANCE FUND, .Defendant(s).Case No.SRO 0277261OPINION AND ORDERGRANTING RECONSIDERATIONAND DECISION AFTERRECONSIDERATIONDefendant, State Compensation Insurance Fund, on behalf of its insured, Blakeley Construction, seeks reconsideration of the Amended Findings, Award and Order, issued June 15, 2007, issued following our order rescinding the prior Findings, Award and Order. In the current final decision, a workers’ compensation administrative law judge (WCJ) found applicant, Luis M. Mariscal, sustained 23% permanent disability, without apportionment, as a result of a June 2, 2004 admitted industrial injury to his back, applying the 2005 Schedule for Rating Permanent Disability (2005 Schedule). The WCJ further found defendant unreasonably refused or delayed payment of $1,695.00 in temporary disability indemnity and imposed a 25% penalty pursuant to Labor Code section 5814. Defendant contends that the WCJ erred in failing to apportion to applicant’s pre-existing pathological condition which applicant’s Qualified Medical Evaluator found caused 25% of applicant’s permanent disability. Applicant has filed an answer arguing that defendant waived the issue of apportionment when it did not raise the issue in its first petition for reconsideration from the February 8, 2007 Findings, Award and Order. Applicant further argues that Dr. Burt’s opinion is not substantial medical evidence justifying apportionment.Following our review of the record, and for the reasons set forth below, we shall grant , reconsideration, rescind the Findings, Award and Order and return this matter to the trial level for further proceedings.Background Applicant, Luis M. Mariscal, sustained an admitted injury to his back on June 2, 2004,while employed as a laborer by Bla
