Hong, James

Truck driver James Hong sustained two admitted industrial injuries (September 26, 2017 and May 10, 2018) and the WCJ found he was permanently totally disabled without apportionment, relying in part on the conclusive presumption under Labor Code section 4662(a)(4) for an injury to the brain resulting in permanent mental incapacity. Defendant sought reconsideration, arguing the PTD finding lacked substantial medical evidence (including because applicant was not yet permanent and stationary) and that the 4662(a)(4) standard of 'permanent mental incapacity' was not met. The Appeals Board first addressed a timeliness issue under former section 5909, applying Shipley and equitable tolling because the case file was not transmitted to the Board within 60 days through no fault of the parties. On the merits, the Board held the record lacked any evidence that applicant was permanently mentally incapacitated, noting applicant coherently testified and was found credible, and that a traumatic brain injury is not synonymous with permanent mental incapacity. The Board rescinded the November 18, 2022 Joint F&A and returned the matter to the trial level for further proceedings.