A Published case on Petition to Reopen for New and Further Disability
- Posted By: Harvey Brown
- August 1, 2014
This is a published case of the Court of Appeal
This is a very significant case for workers’ compensation principles.
The applicant had an admitted injury when he fell off a roof fracturing his right ankle and injuring his back. The applicant was evaluated by an Agreed Medical Examiner (AME). A stipulated award was entered into for 51 percent permanent disability.
Thereafter, the applicant filed a petition to reopen for new and further disability. The AME evaluated the applicant again after the filing of the petition and raised the percent of disability based on an EMG.
The EMG was actually performed prior to the first stipulated award. The case proceeded to trial. The Workers’ Compensation Judge (WCJ) issued a decision finding the applicant did not sustain a new and further disability. The applicant filed a petition for reconsideration. The WCJ vacated his original finding and raised the applicant’s disability.
The Workers’ Compensation Appeals Board (WCAB) disagreed and indicated the applicant did not sustain new and further disability.
The appeals court reviewed Labor Code section 5803 and reversed. The stipulated award did not adequately reflect the disability of the applicant. Whether the original stipulation was the result of inadvertence, excusable neglect, or mistake of fact, the error justifies reopening the resulting award.
Case: Benavides v. WCAB