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Juan Sandoval vs. Milky Way Dairy; Virginia Surety Company, Administered By Applied Risk Services

Milky Way Dairy; Virginia Surety Company, Administered By Applied Risk Services Juan Sandoval WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAJUAN SANDOVAL, Applicant,vs.MILKY WAY DAIRY; VIRGINIA SURETY COMPANY, Administered By APPLIED RISK SERVICES, Defendants.Case No. ADJ6512547 OPINION AND ORDER GRANTING RECONSIDERATION AND DECISION AFTER RECONSIDERATION            Defendant seeks reconsideration of the Findings of Fact and Award issued by a workers’ compensation administrative law judge (WCJ) on June 29, 2011, wherein the WCJ found that lien claimant, Summit Surgical (lien claimant), had met its burden of proof and awarded the sum of $8,177.09 on the balance of its lien for outpatient surgical services.            Defendant contends that the WCJ erred in awarding the balance of $8,177.09 on lien claimant’s lien, arguing in essence that lien claimant did not meet its burden to prove that the treatment it provided was reasonable and necessary as set forth in the Appeals Board en bane cases of Kuntz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588 (Kunz) and Tapia v. Skill Master Staffing (2008) 73 Cal.Comp.Cases 1338 (Tapia). Defendant also contends that the lien claim is barred by the statute of limitations pursuant to Labor Code section 5405, arguing that it raised this issue at the lien trial and the WCJ failed to rule on it.            We have considered the Petition for Reconsideration, and we have reviewed the record in this matter. No answer was received. The WCJ has filed a Report and Recommendation on Petition for Reconsideration (Report), recommending that the petition be denied. For the reasons discussed below, we will grant reconsideration, rescind the June 29, 2011 Findings of Fact and Award, and return the matter to the trial level for further proceedings and a new decision by the WCJ. , FACTS            As relevant here, on November 7, 2003, applicant sustained an admitted injury to his long finger on his right hand. Defenda


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