Mercado, Anthony, Applicant v. CLARK PACIFIC PRECAST; ARCH INSURANCE, administered by INNOVATIVE RISK MANAGEMENT, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
ANTHONY MERCADO, Applicant
vs.
CLARK PACIFIC PRECAST;
ARCH INSURANCE, administered by INNOVATIVE RISK MANAGEMENT,
Defendants
Adjudication Number: ADJ16933451
Van Nuys District Office
OPINION AND ORDER
DENYING PETITION FOR
RECONSIDERATION
Defendant seeks reconsideration of the Amended Findings of Fact and Orders issued by
the workers’ compensation administrative law judge (WCJ) in this matter on August 4, 2025. In
that decision, the WCJ found, in pertinent part, that applicant, while employed by defendant on
July 19, 2022, as a welder specialist, sustained injury arising out of and in the course of
employment (AOE/COE) to the left eye/vision. The WCJ further found applicant sustained a high-
velocity eye injury within the meaning of Labor Code1 section 4656(c)(3)(F) and is therefore
entitled to payment of up to 240 weeks of compensable temporary disability with a period of five
years from the date of injury. 	Defendant asserts the findings of the WCJ are illogical and not
supported by substantial evidence.
We have received an Answer from applicant. 	The WCJ prepared a Report and
Recommendation on Petition for Reconsideration (Report), recommending that the Petition be
denied.
We have considered the allegations of defendant’s Petition for Reconsideration, the
Answer, and the contents of the report of the WCJ with respect thereto. Based on our review of
1 All further statutory references are to the Labor Code unless otherwise stated.

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the record, and for the reasons stated in both the WCJ’s Report and opinion, which we adopt and
incorporate, we will deny reconsideration.
I.
Former section 5909 provided that a petition for reconsideration was deemed denied unless
the Appeals Board acted on the petition within 60 days from the date of filing. 	(Lab. Code,
§ 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:
(a) 	A petition for reconsideration is deemed to have been denied by the appeals
board unless it is acted upon within 60 days from the date a trial judge transmits a
case to the appeals board.
(b)
(1) 	When a trial judge transmits a case to the appeals board, the trial
judge shall provide notice to the parties of the case and the appeals board.
(2) 	For purposes of paragraph (1), service of the accompanying report,
pursuant to subdivision (b) of Section 5900, shall constitute providing
notice.
Under section 5909(a), the Appeals Board must act on a petition for reconsideration within
60 days of transmission of the case to the Appeals Board. Transmission is reflected in Events in
the Electronic Adjudication Management System (EAMS). 	Specifically, in Case Events, under
Event Description is the phrase “Sent to Recon” and under Additional Information is the phrase
“The case is sent to the Recon board.”
Here, according to Events, the case was transmitted to the Appeals Board on September
15, 2025, and 60 days from the date of transmission is November 14, 2025. This decision is issued
by or on November 14, 2025, so that we have timely acted on the petition as required by section
5909(a).
Section 5909(b)(1) requires that the parties and the Appeals Board be provided with notice
of transmission of the case. 	Transmission of the case to the Appeals Board in EAMS provides
notice to the Appeals Board. Thus, the requirement in subdivision (1) ensures that the parties are
notified of the accurate date for the commencement of the 60-day period for the Appeals Board to
act on a petition. 	Section 5909(b)(2) provides that service of the Report and Recommendation
shall be notice of transmission.
Here, according to the proof of service for the Report and Recommendation by the workers’
compensation administrative law judge, the Report was served on September 15, 2025, and the

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case was transmitted to the Appeals Board on September 15, 2025. 	Service of the Report and
transmission of the case to the Appeals Board occurred on the same day. Thus, we conclude that
the parties were provided with the notice of transmission required by section 5909(b)(1) because
service of the Report in compliance with section 5909(b)(2) provided them with actual notice as
to the commencement of the 60-day period on September 15, 2025.
II.
At the outset, we admonish both counsel for defendant, Jenny Chentsova of Llarena,
Merdock, Lopez, & Azizad, APC, and Louis A. Larres of Bradford & Barthel, LLP, for filing a
petition for reconsideration that is violative of section 5813 as well as WCAB Rules 10421 and
10945. (Lab. Code, § 5813; Cal. Code Regs., tit. 8, §§ 10421, 10945.)
WCAB Rule 10945 requires every petition for reconsideration, removal or disqualification
to fairly state all of the material evidence relative to the point or points at issue clearly, and
separately stated, with specific references to the documentary evidence in the record, including
exhibit numbers, the date of the document, as well as relevant page numbers and other details.
(Cal. Code Regs., tit. 8 § 10945(a)&(b).)
Here, defendant claims it was impossible that applicant sustained a high velocity injury
given the protective gear he was wearing without offering any evidence relating to the
effectiveness of such gear. (Petition, pp. 6-8.)
We further admonish defendant for using offensive, inappropriate, and disrespectful
language in their Petition. 	(See Lab. Code, § 5813; see also Cal. Code Regs., tit. 8,
§ 10421(b)(9)(B) [sanctionable conduct includes “using any language in any pleading or other
document 	[…] 	[w]here 	the 	language 	or 	gesture 	impugns 	the 	integrity 	of 	the 	Workers’
Compensation Appeals Board or its commissioners, judges, or staff”].)
Defendant’s petition asserts that the WCJ made a “a series of illogical leaps in reasoning
unsupported by the factual record and any logical or reasonable inferences”; that the WCJ “also
creates an internally inconsistent and unsubstantiated narrative to fit a desired legal outcome”; and
that the WCJ’s finding of high velocity eye injury was “speculative conclusion masquerading as a
factual finding.” 	(Petition, pp. 4-5.) 	There are just a few examples of defendant’s attorneys’
intemperate language directed at the WCJ’s well-reasoned and well-supported Amended Findings
and Orders and Opinion on Decision.

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Finally, defendant appears to now be postulating that applicant’s injury to his left eye was
not industrial at all (Petition, p. 8) despite stipulating on the record to injury AOE/COE at the trial
on December 26, 2024. The only contested issue at the trial with respect to applicant’s left eye
injury was whether he sustained a high velocity eye injury pursuant to section 4656(c)(3)(F).
(12/26/24, Minutes of Hearing and Summary of Evidence, p. 2.)
“Bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay
include actions or tactics that result from a willful failure to comply with a statutory or regulatory
obligation, that result from a willful intent to disrupt or delay the proceedings of the Workers'
Compensation Appeals Board, or that are done for an improper motive or are indisputably without
merit.” 	(Cal. Code Regs., tit. 8, § 10421(b).) 	“Issues not raised in the trial court are generally
forfeited for purposes of appeal.” (Schultz v. Workers' Comp. Appeals Bd. (2015) 232 Cal.App.4th
1126, 1134 [181 Cal.Rptr.3d 891], quoting Natkin v. California Unemployment Ins. Appeals Bd.
(2013) 219 Cal.App.4th 997, 1011 [162 Cal. Rptr. 3d 367]; see also Cuevas v. Workers’ Comp.
Appeals Bd. (2005), 70 Cal.Comp.Cases 479, 483-484 (writ den.); L.A. Unif. School Dist. v.
Workers’ Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 1220 (writ den.).) 	As defendant
previously stipulated that the injury was industrial and did not raise this issue at the trial, it cannot
now be raised for the first time in their Petition.
We therefore reiterate and remind defense counsel that all parties appearing before the
WCAB are required to follow the WCAB’s Rules in all future proceedings, and that the failure to
do so may subject the offending party to sanctions. (Lab. Code § 5813; Cal. Code Regs., tit. 8
§ 10421.)

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For the foregoing reasons,
IT IS ORDERED that the Petition for Reconsideration is DENIED.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ JOSEPH V. CAPURRO, COMMISSIONER
I CONCUR,
/s/ LISA A. SUSSMAN, DEPUTY COMMISSIONER
/s/ PAUL F. KELLY, COMMISSIONER
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
November 14, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
ANTHONY MERCADO
LAW FIRM OF ROWEN GURVEY & WIN
LAW OFFICE OF BRADFORD & BARTHEL
LLARENA MURDOCK LOPEZ & AZIZAD
JMR/abs
I certify that I affixed the official seal of the
Workers’ Compensation Appeals Board to this
original decision on this date. 	abs

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REPORT AND RECOMMENDATION
ON PETITION FOR RECONSIDERATION
I
INTRODUCTION
1. 	Applicant's Occupation: 	Welder Specialist
Applicant's Age on Date of Injury: 	37
Date of injury: 	7/19/2022
Parts of Body Injured: 	left eye/vision
Manner in Which Injury Occurred: 	welding spark
2. 	Identity of Petitioner: 	Defendant filed the petition
Timeliness: 	The petition is timely filed
Verification: 	The petition is properly verified
3. 	Date of issuance of Findings: 	8/4/205
4. 	Petitioner's Contentions:
a. 	That by the order, decision or award, made and filed by the workers' compensation
judge, the appeals board acted without or in excess of its powers;
b. 	That the evidence does not justify the findings of fact;
c. 	That the findings of fact do not support the order, decision or award
II
FACTS
Applicant sustained injury to his left eye when one or more welding sparks entered his left
eye on July 19, 2022. According to applicant's credible and unrebutted testimony (12/26/2024
MOH; pages 3-4):
He was welding and felt discomfort under his hood. He felt stinging, burning and a
scratching sensation. He was wearing both safety glasses and a shield and didn't know if
something had gone over or under. He did not know how the injury occurred. His right eye
was burning, and his left eye was more scratchy.
Applicant's left eye was examined at Arrowhead Regional Medical Center on 7/25/2022
which record indicates: "Patient with flash burn injury with blurring of vision and chemosis in the
eye. Appears to have foreign body on exam. Will refer urgently to ER or urgent care for slit lamp
exam and evaluation for foreign body (exh.10; bates stamp 0334).
Applicant was seen in the emergency room on 7/27/2022 with the following history
recorded:
37 M without significant past medical history presenting here for left eye flash burn on
Friday. Reports that he was wearing glasses at the time but the flash went under his glasses
and hit him in the eye ( exh. 10 bates stamp 0295).

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The metallic foreign body was identified by fluorescein examination and removed by
Ophthalmology on 7/27/2022 (exh. 10 bates stamp 0283). Applicant was seen again 8/1/2022 with
history indicating: "Patient went to the ED on the 25th and foreign body removed. Now with active
corneal ulcer. ( exh. 10 bates stamp 0256).
Applicant was evaluated by AME Ophthalmologist Dr. Sami pursuant to his 12/6/2024
report indicating at page 2:
Applicant...suffered a reported flash burn and metallic foreign body injury to the left cornea
on 7/19/2022. He was subsequently evaluated, and the metallic foreign body was removed.
However, the post traumatic course was complicated by development of a fungal corneal
ulcer with associated intraocular inflammation. Eventually the fungal ulcer resolved
following treatment with voriconazole drops; however, there is persistent loss of corrected
acuity due to residual superficial corneal scar and reported halos and glare with associated
light sensitivity.
The sole issue submitted for decision is whether applicant sustained a high-velocity eye
injury within the meaning of Labor Code §4656 (c) (3) (F). The undersigned found that he had
pursuant to Findings and Order dated 1/27/2025.
The 1/27/2025 Findings and Order was rescinded following the filing of defendant's first
Petition for Reconsideration dated 2/18/2025 as the 12/6/2024 AME report of Dr. Sami became
available only after the 12/26/2024 trial. The case was again submitted for decision on 5/13/2025
following development of the medical record and the undersigned again found that applicant has
sustained injury due to a high-velocity eye injury withing the meaning of Labor Code §4656 (c)
(3) (F).
III
DISCUSSION
Petitioner argues that the "high-velocity eye injury" provision of section 4656( c )(3 )(F)
must be narrowly construed and found to apply only upon proof of a specific, evidenced
mechanism of force-underscoring that such a finding cannot rest on speculation or assumption.
However, defendant's argument fails to acknowledge and appreciate the plain meaning of
the words used by the legislature in enacting Labor Code §4656(c)(3)(F) which states:
(3) Notwithstanding paragraphs (1) and (2), for an employee who suffer[]s from the
following injuries or conditions, aggregate disability payments for a single injury
occurring on or aft[]er April 19, 2004, causing temporary disability shall not extend for
more than 240 compensable weeks within a period of five years from the date of the
injury:
(F) High - velocity eye injuries
The court in Glick (supra) addressed defendant's assertion in that case that the legislature
intended to require an "impact" of a high velocity object with the eye and referenced the plain
meaning of the words of the statute noting:
" ... velocity is defined in the Merriam-Webster dictionary as 'quickness of motion,
rapidity of movement or the speed imparted to something' or 'the rate of occurrence or

8
action, (b) rate of turnover'. The requirement of a concomitant impact is neither integral
nor even contemplated in the definition of velocity. We also note that neither the terms
'impact' nor 'object' are found in the statute".
There is no doubt that a welding spark moves with a "quickness of motion and rapidity of
movement". While the force of impact has been cited as a possible means of gauging velocity in
the absence of definitive evidence as to velocity, impact is neither integral to nor contemplated in
the definition of velocity and not relevant in a case such as this where the mass of the object is
apparently negligible.
A fluorescein examination was necessary in order to locate and remove the metallic foreign
body from applicant's left eye. Medline Plus, a U.S. Government website, notes the following
regarding a Fluorescein eye stain: "This is a test that uses orange dye (fluorescein) and a blue light
to detect foreign bodies in the eye ... "
Based thereon, it is reasonable to infer that the two metallic foreign bodies identified on
fluorescein examination were visible to the physician only with that examination and which
provides some measure of insight as to their mass.
Petitioner asserts that the most glaring logical flaw in the decision is the conclusion the
injury was caused by a high velocity object despite the claimant's admission of wearing a welding
shield and safety\glasses.
Petitioner speculates both that the spark could not have reached applicant's left eye with
any degree of velocity as the spark was necessarily stopped in its straight line trajectory by
applicant's safety gear and that, having been stopped in that manner, the spark must have dropped
into his eye from above.
Petitioner provides no evidence, authority or foundation for its assertions that a welding
spark traveling at high velocity travels in a straight line and that the protective gear must
necessarily have stopped the spark before entering applicant's eye.
Applicant, a welding specialist, testified credibly that he believed that the spark must have
either gone over or under his hood. Based thereon, it is reasonable to infer that applicant had
observed that welding sparks do not necessarily travel in a straight line.
Petitioner contends that applicant's inability to either anticipate or see the spark diminished
applicant's ability to gauge it[]s speed and somehow obviates the court's proper application of
Labor Code §4656(c)(3)(F) in this case.
Whereas, the Board has indicated the opposite noting that whether or not the applicant was
able to see it coming might be relevant and should be addressed because the applicant's failure to
anticipate the object striking his eye could be an indicator of high velocity. Gutierrez v. Socal
Framing, 2012 Cal. Wrk. Comp. P.D. LEXIS 25.
The object at issue in Gutierrez was a piece of wood. The court noted the following:
... there must be some degree of force of impact. This is so because according to the
general laws of physics, the more force which is "imparted to something" of the same
mass, the higher its speed or velocity.
Based upon the foregoing, there exists a relationship between an objects mass and both its
velocity and force of impact. It does, therefore, logically follow that if the degree of [] force is not

9
obvious, as in this case involving an object of negligible mass, the amount of initial damage to the
eye is not likely a reliable indicator of the velocity at impact.
Finally, Petitioner now at1d for the first time argues that "Not a single medical opinion in
evidence affirms that this fragment entered the applicant's left eye on the date of the injury."
The undersigned finds that there is at11ple evidence that this admitted injury to the left eye
occurred as described by applicant's testimony at trial at1d throughout the medical record.
The undersigned finds that applicant has met his burden of proof with respect to the
applicability of Labor Code §4656( c )(3 )(F) for the reasons set forth herein above.
IV
RECOMMENDATION
It is respectfully recommended that the defendant's Petition for Reconsideration dated
August 28, 2025 be denied.
This case was transmitted to the Board on September 15, 2025.
DATE: September 15, 2025
RUSSELL SHUBEN
WORKERS’ COMPENSATION JUDGE

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AMENDED
OPINION ON DECISION
Applicant sustained injury to the left eye while performing his duties as a welder on
7/19/2022. The sole issue is whether applicant sustained injury to the left eye due to a high velocity
eye injury within the meaning of Labor Code §4656 (c)(3) (F).
A Findings and Order and Opinion on Decision initially issued on 1/25/2025. The Findings
and Award and Opinion on Decision were rescinded to develop the record following the timely
filing by defendant of its Petition for Reconsideration. Defendant argued in its Petition for
Reconsideration that issues remained as to whether the corneal scarring in applicant's left eye was
caused by the industrial injury and the undersigned Ordered development of the record to address
that and other issues raised by defendant. Additional exhibits were received in evidence and the
case resubmitted at trial on 5/13/2025.
Applicant's credible m1d unrebutted testimony at trial (MOH 12/26/2024; pages 3 - 4) is
summarized in relevant part as follows:
-He was welding and felt discomfort under his hood
-He felt stinging, burning, scratching sensation
-He was wearing both safety glasses m1d a shield at the time of injury
-He did not notice how the injury had occurred
-He didn't know if something had gone over or under
-He said to a coworker that he thought he had suffered a flash burn
-He recalled that his right eye was burning and his left eye was more scratchy
-He did not know that there was a foreign body
-He was told that there was metal in his eye when he saw the doctor on either 7/25/2022 or
7/27/2022
-The doctor performed a procedure to remove two pieces of metal
-He was left with scar· tissue over the cornea after removal of the metal
Applicant was evaluated at Arrowhead Regional Medical Center (ARMC) on 7/25/2022
(Exhibit 4) at which time the following history was noted:
Patient works as a welder and was exposed to flame with unprotected eye leading to flash
injury 3 days ago. Patient has been using OTC eye drops over the weekend and has had
increasing redness and dry feeling in his eye. In addition, he complains of pain and blurry
vision as well as foreign body sensation. (BATES STAMP 0336)
Applicant was again seen at ARMC on 7/27/2022:
Fluorescein exam showed uptake with metallic foreign body noted at the 6 o'clock
position in the left eye. The foreign body was removed by ophthalmology. (BATES
STAMP 0280)
The records of Loma Linda University Health (Exhibit 5) contain the 4/2/2023 report of
Michael Sheety, D.O. which includes the following history:

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The injury occurred when a flash spark went into the left eye while wearing a
protective hood while performing his usual and customary duties at work ... there is
loss of vision in the left eye. Identified on examination is a visually significant corneal scar
and cataract in the left eye.
Applicant testified credibly on both direct and cross examination that he wore safety
glasses and a shield at the time of injury. He testified that he did not know whether something had
gone "over or under". Based thereon, it is found that the mechanism and manner in which the
injury occurred is as set forth by Dr. Sheety in his 4/2/2023 report as set forth above.
The Board has extended the benefit of Labor Code § 4656(c)(3)(F) when the impact of a
high-velocity object was to the person rather than the eye. Glick (Andrew) v. Knight-Swift
Transportation Holdings, 2022 Cal. Wrk. Comp. P.D. LEXIS 306.
The Board has extended the benefit of section §4656(c)(3)(F) when there was no definitive
evidence showing the velocity of the object and found that applicant's testimony as to what
occurred was sufficient. The Board found that a reasonable inference can be drawn from the facts
to which applicant testified, that he was struck in the eye at high velocity after a portion of the nail
he hit with his hammer splintered off. Gonzales v. Barrett Bus. Servs, 2018 Cal. Wrk. Comp. P.D.
LEXIS 478.
The Board has indicated that whether the applicant was able to see it coming might be
relevant and should be addressed because the applicant's failure to anticipate the object striking
his eye could be an indicator of high velocity. Gutierrez v. Socal Framing, 2012 Cal. Wrk. Comp.
P.D. LEXIS 25.
The facts and circumstances of the cases providing insight as to when the benefit of Labor
Code§ 4656(c)(3)(F) is to be extended vary greatly. The objects traveling at high velocity have
included a rock, automobile, piece of wood and nail head. The object in the instant case is a spark
containing what can be fairly described as a tiny metal fragment.
The object at issue in Gutierrez (Supra) was a piece of wood. That court noted the
following:
... there must be some degree of force of impact. This is so because according to the general
laws of physics, the more force which is "imparted to something" of the same mass, the
higher its speed or velocity. It also follows that if the degree of force is not obvious, as in
this case, the amount of damage to the eye may be an indicator of the velocity at impact.
A Fluorescein examination was needed to locate the metallic foreign body removed from
applicant's left eye on 7/27/2022. Applicant testified that he did not !mow either how the injury
had occurred or whether something went over or under his protective gear.
It is apparent based upon the totality of the circumstances herein that: 1) the metallic
foreign body contained in the spark that struck applicant's eye was very small; 2) the metallic
foreign body that struck applicant's left eye traveled at high velocity as it flew either over or under
his protective gear and he did not see it coming; and 3) given it's small mass, not much force of
impact can be expected to have occurred even in light of it[]s high velocity.

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Labor Code § 4656(c)(3)(F) is plainly stated:
(3) Notwithstanding paragraphs (1) and (2), for an employee who suffers from the
following injuries or conditions, aggregate disability payments for a single injury occurring
on or after April 19, 2004, causing temporary disability shall not extend for more than 240
compensable weeks within a period of five years from the date of the injury:
(F) High-velocity eye injuries
As the court noted in Glick (Supra):
"... we note that "velocity" is defined in the Merriam-Webster dictionary as "quickness of
motion, rapidity of movement or the speed imparted to something" or "the rate of
occurrence or action, (b) rate of turnover." The requirement of a concomitant impact is
neither integral nor even contemplated in the definition of velocity. We also note that
neither the terms "impact" nor "object" are found in the statute"
There is no doubt that a welding spark moves with a "quickness of motion and rapidity of
movement". While the force of impact has been cited as a possible means of gauging velocity in
the absence of definitive evidence as to velocity, impact is nether integral to nor contemplated in
the definition of velocity and not relevant in a case such as this where the mass of the object is
apparently negligible.
Among the exhibits received in evidence on 5/13/2025 was the deposition of AME Dr.
David Sarni dated 4/10/2025 ( exhibit x 1 ). Dr. Sarni testified as to whether the corneal scarring
in applicant's left eye was caused by the industrial injury at pages 7 and 8:
Page 7
Q 	... my understanding of what you said is that the applicant had a metallic foreign body that
lodged in his left cornea; is that correct?
A 	Suffered a metallic corneal foreign body injury. That's correct.
Q 	And then he w1derwent a removal procedure to remove that metallic foreign body from
his left cornea; correct?
A 	That's my understanding, yes.
Q 	... and then post that surgery, he developed a fungal infection or corneal ulcer with
intraocular inflammation?
A 	That's what the record indicates, yes.
Q 	... And then the fungal ulcer then caused a corneal scarring which then causes halos and
glare and light sensitivity and a loss of acuity in the left eye; is that correct?
A 	That's correct
Page 8
Q 	... the fungal ulcer resulted from the surgery to remove the metallic foreign body; is that
correct?
A 	I don't know the answer to that question. The removal of the foreign body did not cause the
fungal ulcer. The disruption of the epithelium allowed a second opportunistic infection to
happen.

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Q 	Okay. But had it not been for the removal of the foreign body, he would not have developed
that fungal ulcer, is that correct?
A 	The disruption -the injury to the epithelium from the foreign body allowed a fungal species
to invade, yes. I would also qualify that by saying that, and we see them in the setting of
preexisting conditions such as poorly controlled diabetes, which is not applicable in this
case; contact lens wear, which is not applicable in this case; and immune suppression which
is applicable in this case.
It is clear, based upon the foregoing, that the corneal scar would not have occurred absent
the need to remove the metallic foreign body on an industrial basis. In light of all of the foregoing
and as LC §3202 provides for liberal construction of statutes within the division for the purpose
of extending benefits for the protection of injured workers, it is hereby found that Applicant
sustained a high-velocity eye injury within the meaning of Labor Code§ 4656(c)(3)(F) and is
therefore entitled to payment of up to 240 weeks of compensable temporary disability within a
period of five years from the date of injury.
Date: August 4, 2025
Russell Shuben
Workers’ Compensation Judge