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Sergio Marquez vs. Alan’s Lawnmower And Garden Center; Inc; Star Insurance Company, Administered By Illinois Midwest Insurance Agency

Alan’s Lawnmower and Garden Center; Inc; Star Insurance Company, Administered by Illinois Midwest Insurance Agency Sergio Marquez WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIASERGIO MARQUEZ, Applicant,vs.ALAN’S LAWNMOWER AND GARDEN CENTER; INC; STAR INSURANCE COMPANY, Administered by ILLINOIS MIDWEST INSURANCE AGENCY, Defendants.Case No. ADJ7186657ORDER DENYING RECONSIDERATION            Applicant, Sergio Marquez, seeks reconsideration of the Findings and Order, issued July 6, 2011, in which a workers’ compensation administrative law judge (WCJ) found applicant did not sustain an industrial injury on September 23, 2009, while employed by Alan’s Lawnmower and Garden Center, finding applicant did not establish the presumption of industrial injury under Labor Code section 5402 or that an exception to the post-termination affirmative defense under Labor Code section 3600(a)(10) was applicable, where applicant filed his claim after his termination on October 24, 2009.            Applicant contends the WCJ erred in concluding the post-termination affirmative defense in Labor Code section 3600(a)(1 0) was applicable, where the evidence shows the employer had knowledge of the incident giving rise to applicant’s claim of injury. Applicant further argues that the presumption of injury should apply based upon evidence that a claim form was mailed to the employer more than 90 days prior to the denial of applicant’s claim. Defendant has filed an answer to applicant’s petition.            We have considered the allegations and arguments of the Petition for Reconsideration, as well as the answer thereto, and have reviewed the record in this matter and the WCJ’s Report and Recommendation on Petition for Reconsideration of August 15, 2011, which considers, and responds to, each of the applicant’s contentions. Based upon our review of the record, and for the reasons stated in the WCJ’s Report, which we adopt and incorporate as the decision of the Board, we will affirm the WC


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