THOMAS HERNON, vs. COUNTY OF SANTA CLARA,

This case involves Thomas Hernon, an employee of the County of Santa Clara, who sustained an injury to his low back, neck, and bilateral shoulders while on the job. The Workers' Compensation Appeals Board granted reconsideration and reversed the Workers' Compensation Judge's findings on apportionment and occupational group number, but otherwise affirmed the WCJ's decision in its application of the 1997 PDRS. The WCJ found that the appropriate occupational group was 560, which contemplates that applicant was a furniture mover. However, the Minutes of Hearing and Summary of Evidence showed that applicant was a painter, group number 380, as he claimed at trial. The Board also found that 10% of applicant's overall permanent disability was due to "other factors"

Filed On: July 28, 2009
Court: California, San Jose
Case No. ADJ2748573

COUNTY OF SANTA CLARA, THOMAS HERNON, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIATHOMAS HERNON, Applicant,vs.COUNTY OF SANTA CLARA, Defendant(s).Case No. ADJ2748573 (SJO 0257327)OPINION AND ORDER GRANTING RECONSIDERATION AND DECISION AFTERRECONSIDERATION Defendant seeks reconsideration of the Findings and Award of May 1.1, 2009, in which the workers’ compensation judge (WCJ) found, in relevant part, that applicant, while employed on May 3, 2003 as a public service worker, occupational group number 560, sustained industrial injury to his low back, neck and b.ilateral shoulders, that the 1997 Schedule for Rating Permanent Disabilities (PDRS) applies pursuant to Labor Code section 4660(d), that the injury caused permanent disability of 74%, that the permanent disability award is subject to Labor Code section 4659(c) increases effective January 1, 2004, and that 100% of applicant’s permanent disability is the result of the industrial injury, without apportionment to other factors. Defendant contends, in substance, that the medical opinion of Dr. Conrad, the Agreed Medical Evaluator (AME), justifies a finding of apportionment, that the evidence justifies an occupational group number of 340 or 380, and that the 2005 rather than the 1997 PDRS applies because there was no medical report before January 1, 2005 indicating the existence of permanent disability and no medical report which required defendant to serve a Labor Code section 4061 notice. Defendant further contends that its delay in payment of temporary disability and its issuance of an unnecessary notice does not justify application of the 1997 PDRS. Applicant filed an answer./// , The WCJ submitted a Report and Recommendation. We adopt and incorporate the “Introduction” and “Facts” sections of the WCJ’s Report. We do not adopt or incorporate the remainder of the Report. Based on our review of the record, we will grant reconsideration and reverse

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