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Ernesto Mercado, vs. Personnel Plus, Inc.; American Home Assurance Company Administered By Aig Domestic Claims, Inc.,

PERSONNEL PLUS, INC.; AMERICAN HOME ASSURANCE COMPANY administered by AIG DOMESTIC CLAIMS, INC., ERNESTO MERCADO, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAERNESTO MERCADO, Applicant,vs.PERSONNEL PLUS, INC.; AMERICANHOME ASSURANCE COMPANYadministered by AIG DOMESTIC CLAIMS,INC., Defendant(s).Case No. ADJ404999 (MON 0357699)OPINION AND ORDER DISMISSING PETITION FOR RECONSIDERATION, GRANTING PETITION FOR REMOVAL AND DECISION AFTER REMOVAL            Defendant seeks removal and or reconsideration of the July 29, 2009 order that defendant schedule an evaluation of applicant with Dr. Peter Newton, pursuant to Labor Code section 5701. The workers’ compensation administrative law judge (WCJ) determined that the evaluation was necessary to resolve ambiguity in the record, before he could assess the adequacy of the parties’ Compromise and Release (C&R). This case arises from applicant’s admitted industrial injury to his low back, while employed as a labor clerk on December 18, 2007.            Defendant contends the WCJ erred in ordering the evaluation pursuant to section 5701, arguing that the order is contrary to the holding in McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 (Appeals Board en banc), that Appeals Board Rule 10878 (Cal. Code Regs., tit. 8, § 10878) requires a hearing when adequacy of a C&R is in doubt, and that there is no legal basis for disputing the adequacy of the medical record, because applicant did not challenge Dr. McClure’s report and seek resolution pursuant to Labor Code sections 4061 and 4062. ,             We have considered the Petition for Reconsideration, and we have reviewed the record in this matter. We have not received an Answer from applicant. The WCJ prepared a Report and Recommendation on Petition for Reconsideration and/or Removal (Report), recommending that the petition for reconsideration be dismissed and that the petition for removal be denied.            For the reasons dis


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