MAURICE MONTGOMERY vs. DIRT MOVERS; STATE COMPENSATION INSURANCE FUND

DIRT MOVERS; STATE COMPENSATION INSURANCE FUND MAURICE MONTGOMERY WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAMAURICE MONTGOMERY, Applicant,vs.DIRT MOVERS; STATE COMPENSATION INSURANCE FUND, Defendants.Case No. ADJ4192022 (RDG 0099452)OPINION AND DECISION AFTER RECONSIDERATION            On September 19, 2011 we granted defendant’s Petition for Reconsideration of the June 30, 2011 Second Amended Findings and Award issued by the workers’ compensation administrative law judge (WCJ). Therein, the WCJ found, based on the parties’ prior stipulations, that applicant while employed as a heavy equipment operator on June 1, 1999, sustained industrial injury to his low back. The WCJ further found that “applicant is entitled to 53.5% . . permanent disability after apportionment and overlap principles are applied to permanent disability related to Dr. Schwartz’ final report (73%).” We granted reconsideration in order to allow us time to further study the factual and legal issues in this case.            Previously, a January 24, 1992 Findings and Award issued in a related case (Case No. RDG 42735) finding that applicant sustained industrial injury to his left knee causing 28% permanent disability while employed “during 3/89” as a fitter. This Award was based on the deposition testimony of Peter Mandell, M.D., who had found applicant precluded from very heavy work. On June 1, 1999, applicant sustained the industrial injury to his low back which is the subject matter of this claim. This claim proceeded to a mandatory settlement conference (MSC) on April 23, 2007. While applicant had previously been represented, applicant represented himself at that MSC. The record of that MSC reflects stipulations by the parties that defendant paid temporary disability from June 11, 1999 through December 30, 2004, that Donald Schwartz, M.D., was the agreed medical examiner (AME), and that applicant sustained 73% permanent disability after 20% apportionment. The 20% apportionment was bas

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