IT IS ORDERED that the published opinion filed herein on May 19, 2014,
226 Cal.App.4th 298;___Cal.Rptr. 3d___ be modified as follows and the petition for rehearing is DENIED:
1. On page 3, seventh sentence of the last full paragraph [226 Cal.App.4th 304, advance report, 2d par., line 8], the word “testimony” is changed to “evidence” so the sentence now reads:
The evidence varied about the number of staff under Lantz’s supervision.
2. On page 6, after the first sentence of the second paragraph starting with “In April 2012" [226 Cal.App.4th 306, advance report, 2d par., line 2], insert the following sentences and footnote 3, which will require renumbering of all subsequent footnotes:
Two witnesses testified at the hearing-Shannon Lantz and Lieutenant Contreras. The parties also offered evidence in the form of exhibits, which included transcripts of November 18, 2010, interviews of Lieutenant Contreras and Captain Walker.
3. On page 19 at the end of the last paragraph, after the sentence ending “substantial evidence test" [226 Cal.App.4th 316, advance report, 4th par., last line], insert the following sentence:
Respondents have not argued that the evidence itself contains conflicts.
4. On page 27 in the last full paragraph [226 Cal.App.4th 322, advance report, 2d full par., lines 2-3], revise the beginning of the second sentence by replacing “We conclude that the testimony of Lieutenant Contreras and Captain Walker” with:
We conclude that the testimony and interview of Lieutenant Contreras and the interview of Captain Walker
5. On page 28, immediately before heading 5 [226 Cal.App.4th 323, advance report, after the 1st full par.], insert the following heading and text, which will require renumbering of the current heading 5 to heading 6:
5. Petition for Rehearing
In their petition for rehearing, applicants contend that this court should not have relied on the conflict in the evidence about the number of staff supervised by Lantz because (1) respondents’ answer to their petition for writ review stated the material facts were not in dispute; (2) the WCAB’s decision did not (a) explicitly state it was resolving an evidentiary conflict or (b) include a finding about the number of staff Lantz supervised in each assignment; and (3) respondents should not reap the benefit of the deferential standard of review applied to questions of fact when it is their evidence that contains the inconsistency about an underlying fact.
First, the statement in respondents’ answer that the material facts are not disputed does not provide an answer to the factual question concerning the number of employees Lantz supervised as watch commander. Second, the absence of a specific finding of fact on this question by the WCAB does not mean we must conclude the fact is immaterial or that the WCAB impliedly found in favor of applicants. Notwithstanding respondents’ answer and the WCAB’s silence, we could not ignore the conflict in the evidence because our review of the special mission exception issue required a complete factual foundation. Therefore, we resolved the evidentiary conflict by viewing the statement of Captain Walker in the light most favorable to the WCAB’s decision, concluding that Lantz’s assignment as watch commander decreased by 40 percent the number of employees he supervised. We then used this fact in our evaluation of the WCAB’s next two analytical steps-steps that the law does not require the WCAB to make explicit. Specifically, WCAB had to decide (1) what inferences to draw from the underlying ...