After You Receive Aa RU-107 You Should File Your RU-105

An appellate court has recently held that where an-applicant has not timely objected to the request for termination, the-applicant will be held to the requirements of Labor Code section 5410 (five year rule).

This case dealt with an applicant who was unable to read English, although he could understand English. The applicant entered into a Compromise and Release which did not include a Thomas waiver. The applicant signed a Declination (RU-107). The defendants, thereafter, filed a Request for Termination (RU-105). The applicant filed an RU-103. The Rehab Bureau decision was that the Objection to Termination was not timely since the RU-103 was more than 30 days after the request for termination. The Rehab Unit indicated that the applicant must now file A Petition to Reopen showing good cause pursuant to section 5410.  Applicant did not appeal. Thereafter, applicant filed a petition to reopen Rehab. The Rehab unit found that applicant’s reasons for reopening were not sufficient under 5410. The applicant filed an appeal alleging a “change of mind” was sufficient under Section 10017.

The WCJ on appeal stated “(w)here there is a declination under the rules, Section 10017 allows a reopening where there has been a change of circumstances. In the undersigned’s opinion, a change of circumstance is something more than an injured worker simply changing his or her mind and saying that he or she now wishes this benefit. A change of circumstance must be something where the applicant was, for example, unable to participate because of the need to take care of a family member…  A change of mind is simply not… a change of circumstance.”

The appellate court indicated that once the applicant declines rehabilitation benefits, it is appropriate for the employer to request termination of rehabilitation services and they cited Labor Code section 4644 for authority.  Therefore, once the defendant receives the RU-107 it behooves them to file the RU-105 as quickly as possible. The appellate court further indicated that if the applicant does not timely object to the request for termination the applicant could then only apply for Rehab under Labor Code 5410. The appellate court agreed with the WCJ and indicated that to come within the meaning of 5410, the section requires more than a mere change of mind. The defendant should make sure that the reason to reopen is specifically pleaded in the Petition To Reopen so that an adequate investigation and defense can be maintained.

This case also involved the side issue that the applicant claimed he did not understand the paper work since he did not read English. One way to alleviate this problem is to have an interpreter present and have the interpreter sign both the C& R and the RU-107 staling that a proper translation was made and that the applicant understood it.

Case: Cisneros V. W.C.A.B.

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

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