Ricardo Duarte Ponce, vs. Ross Stores, Inc.; Sedgwick Claims Management Services,

This case involves a dispute between Ricardo Duarte Ponce, an employee of Ross Stores, Inc., and Sedgwick Claims Management Services, regarding a workers' compensation claim. Ponce alleged that he sustained industrial injury to his cervical spine, head, back, right eye, hands, dizziness, psyche, and neurologic while employed as a retail associate/stock room clerk on March 15, 2005. The parties agreed to resolve the claim by way of a compromise and release in the sum of $26,190.50, less permanent disability advances paid ($4,032.00) and less amounts to be allocated to a Medicare Set Aside (MSA) ($12,729.00). The MSA was subject to approval from the Centers

ROSS STORES, INC.; SEDGWICK CLAIMS MANAGEMENT SERVICES, RICARDO DUARTE PONCE, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIARICARDO DUARTE PONCE, Applicant, vs.ROSS STORES, INC.; SEDGWICK CLAIMSMANAGEMENT SERVICES, Defendants.Case No. ADJ2214463 (VNO 0522433)OPINION AND ORDER GRANTING RECONSIDERATION AND DECISION AFTER            Defendant seeks to set aside, or in the alternative, seeks reconsideration of the Order Approving Compromise and Release Agreement (OACR) issued by the workers’ compensation administrative law judge (WCJ) on December 11, 2008, wherein the WCJ approved the parties’ compromise and release. In the compromise and release (C&R), the parties agreed to resolve applicant’s claim that, while employed as a retail associate/stock room clerk on March 15, 2005, he sustained industrial injury to his cervical spine, head, back, right eye, hands, dizziness, psyche, and neurologic. The C&R, in the sum of $26,190.50, was less permanent disability advances paid ($4,032.00) and less $12,729.00, “payable to Medicare Set Aside Trust to be paid to the applicant.”            Defendant contends that the OACR should be set aside, arguing that the parties intended for the C&R to be contingent upon approval of the proposed Medicare Set Aside (MSA) allocation by Centers for Medicare Services (CMS) and that the parties failed to obtain its approval. Defendant argues that the MSA was an estimate, and that approval of a final amount by CMS has not yet occurred. No answer was received.            We have considered the petition for reconsideration, and we have reviewed the record in this matter. The WCJ has filed a Report and Recommendation on Petition for Reconsideration (Report), recommending that the petition be granted, and the matter returned to the trial level for , further proceedings and disposition. For the reasons set forth in the WCJ’s Report and discussed below, we will grant reconsideration, rescind the WCJ’s December 11, 2008 Order Approving Compro

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