A psychiatric claim on a petition to reopen was allowed even though it was never raised on original claim

This is a writ denied decision

This is a very significant case for workers’ compensation principles.

The applicant suffered a compensable injury to his left shoulder, hands and neck due to a cumulative trauma. The case went to trial and the Workers’ Compensation Judge (WCJ) issued a Findings and Award for 69% permanent disability.

Thereafter, the applicant filed a timely Petition to Reopen for New and Further disability. The applicant alleged a psychiatric disability for the first time as a compensable consequence of the original disability. There was substantial evidence of the psychiatric disability before the original trial, but no psychiatric claim was made.

The WCJ found the applicant was precluded from raising the psychiatric claim on the petition to reopen. The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) found the applicant was not precluded from raising the psychiatric claim. They reasoned that even though applicant was aware of psychiatric symptoms there was no substantial evidence before the original trial establishing industrial causation.

Here, even though there was knowledge, there was no diagnosis using DSM III prior to the original trial.

The WCAB granted reconsideration. The Court of Appeal denied the writ that was filed. The court of appeal indicated that panel decisions are citable authority.

Case: Illinois Midwest Insurance v. WCAB (Gomez)

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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