Avila, Sergio

Applicant Sergio Avila, a carpenter, fell approximately twelve feet through a hole at a worksite after crossing guardrails and placing his weight on a plywood cover that could not support him, sustaining serious injuries. Applicant and his wife brought a third-party lawsuit against the general contractor and subcontractors, which settled for a gross amount of $1,020,000 with a net recovery of $585,229.05; defendant ACS then sought a third-party credit under Labor Code sections 3858 and 3861. The WCJ found ACS 5% negligent and applicant 10% responsible, using the settlement value as a proxy for total damages and awarding a credit to be adjusted by the parties. The Appeals Board granted reconsideration and rescinded the F&O, finding the order lacked definite findings, that the WCJ improperly relied on ACS's expert (who found no employer negligence, conflicting with the WCJ's own finding of negligence), failed to consider whether the net recovery included the wife's loss of consortium claims, improperly used settlement value as a proxy for total damages, wrongly excluded relevant evidence, and lacked evidence of benefits actually paid. The matter was returned to the trial level for further proceedings and development of the record.