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Martin Ayala, vs. Fulton Processors, Inc.; State Compensation Insurance Fund,

FULTON PROCESSORS, INC.; STATE COMPENSATION INSURANCE FUND, MARTIN AYALA, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAMARTIN AYALA, Applicant,vs.FULTON PROCESSORS, INC.; STATE COMPENSATION INSURANCE FUND, Defendant(s).Case Nos. ADJ3843443 (SRO 0123750)ADJ994170 (SRO 0123751)OPINION AND ORDER GRANTING RECONSIDERATION AND DECISION AFTER RECONSIDERATION            Applicant seeks reconsideration of the Findings, Award and Orders issued by the workers’ compensation administrative law judge (WCJ) on July 27, 2009, wherein the WCJ found that applicant has shown good cause to reopen his claim for new and further disability, and that he has a joint permanent disability of 54% after apportionment. The WCJ also found that the issue of additional apportionment was barred by the doctrine of res judicata. Previously, the parties stipulated that applicant, while employed as a loading dock worker on June 3, 2002 (ADJ3843443/SRO 0123750) and through December 6, 2002 (ADJ994170/SRO 0123751), sustained industrial injury to his back, causing 50% permanent disability, and a need for further medical treatment.            Applicant contends that the WCJ erred in finding 54% permanent disability, arguing that the WCJ’s recalculation of the February 28, 2005 prior stipulated award of 50% permanent disability is not supported by substantial evidence because it is based on speculation, conjecture and surmise. Applicant argues that the February 28, 2005 stipulated award was final for purposes of res judicata, and that any apportionment should apply only to the increase in applicant’s permanent disability, not to the 50% permanent disability found in his prior award.            We have considered the petition for reconsideration, and we have reviewed the record in this matter. Defendant filed an answer. The WCJ prepared a Report and Recommendation on , Petition for Reconsideration (“Report”), recommending that the petition be denied. For the reasons discussed below, we will grant

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