STATE OF CALIFORNIA; SCIF STATE EMPLOYEES COMMERCE, WILLIAM HENDERSON, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAWILLIAM HENDERSON, Applicant,vs.STATE OF CALIFORNIA; SCIF STATE EMPLOYEES COMMERCE, Defendant(s).Case No. ADJ3704328 (LAO 0723622)OPINION AND DECISION AFTER RECONSIDERATION We previously granted defendant’s petition for reconsideration to further study the factual and legal issues in this case. This is our Opinion and Decision After Reconsideration. Defendant sought reconsideration of the Findings and Order dated December 17, 2008, and filed and served on January 12, 2009, wherein the workers’ compensation administrative law judge (WCJ) denied defendant’s appeal of the September 9, 2008 Determination of the Rehabilitation Unit (RU). Defendant contended the WCJ erred in denying its appeal, arguing that the employer I provided modified work in accordance with Labor Code section 4644(a)(5) of the pre-2004 Labor Code. We have considered the Petition for Reconsideration, applicant’s Answer, and the WCJ’s Report and Recommendation on Petition for Reconsideration; and we have reviewed the record in this matter. For the reasons discussed below, we will rescind the WCJ’s Findings and Order, find that applicant’s inchoate right to vocational rehabilitation benefits had not vested prior to the repeal of Labor Code section 139.5, grant defendant’s appeal, and vacate the RU’s Determination. Applicant sustained industrial injury to his thoracic spine on December 3, 1994, while employed as a tree maintenance worker. His case in chief was resolved by the stipulated award of , August 30, 1996. Applicant returned to modified work for approximately three years. Following an August 19, 2008 rehabilitation conference, the RU issued its Determination on September 9, 2008, finding that applicant is entitled to retroactive vocational rehabilitation maintenance allowance (VRMA) at the temporary disability rate
