Filed 1/21/99

COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

CONNIE GONZALES, 3 Civil C029015

Petitioner, (WCAB No. SAC 245871)

v.

WORKERS’ COMPENSATION APPEALS BOARD ORDER MODIFYING OPINION

and HUNT-WESSON, INC., AND DENYING REHEARING

Respondents. [No Change in Judgment]

THE COURT:

It is ordered that the opinion filed here on December 22, 1998, be modified in the following particulars:

1. On page 2, line 4 and 5, delete "a seasonal employee". The sentence will read as follows:

"The petitioner experienced a work-related injury to her right big toe in May 1995."

2. Add the following footnote to the last line on page 8.

"Fn. 3. The petitioner argued in her reply brief for the first time in the course of this matter that section 4453, subdivision (d), precluded any reduction in her temporary total disability payments for the duration of her disability, regardless of any changes in her earning capacity. (E.g., Grossmont Hospital v. Workers’ Comp. Appels Bd. (1997) 59 Cal.App.4th 1348, 1358-1362.) However, as she failed to raise this argument in her petition for rehearing before the WCAB, she is precluded from pursuing it here. (§ 5904; U.S. Auto Stores v. Workmen’s Comp.App.Bd. (1971) 4 Cal.3d 469, 476, 477.) "

This footnote will not require renumbering of footnotes.

Appellants petition for rehearing is denied. There is no change in judgment.

FOR THE COURT:

SIMS , Acting P.J.

DAVIS , J.