Five year limit on New and Further Disability extended by need for Medical Treatment

• Posted By: Harvey Brown
• June 1, 2022

This is a Board Panel decision

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

The applicant was injured May of 2012 to the low back. The applicant had a discectomy in 2013 and received a 17 percent permanent disability award in January of 2015.

Later that year the applicant complained of  radicular symptoms and filed a petition to reopen his claim for new and further disability. The applicant had an MRI and a orthopedic consult discussed the need for possible surgery.

The applicant put off the need for surgery because he was going to school. In May of 2018, more than 5 years after the date of injury, an AME determined the applicant had no new periods of temporary disability or any increase in permanent disability.

The applicant filed a Declaration of Readiness to Proceed in August 2019, and the claim was set for trial in October 2020. Before the trial date the applicant had been referred for surgery.

The Workers’ Compensation Judge (WCJ) determined the petition to reopen was timely and valid. The WCJ ruled the applicant had not sustained new and further disability within five years.

Applicant filed a Petition for Reconsideration. The Workers’ Compensation Appeals Board (WCAB)  overruled the WCJ indicating the need for additional surgery was sufficient to reopen the case.

Pascacio v Jacob Farm Services/Star Ins.

 Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586

Case:

• Posted In: Disability, Medical Treatment, Petition, Work Injury