Defining New and Further Disability in a Petition to Reopen
When the applicant files a petition for new and further disability after signing a Stipulated Award, the question often arises as to whether or not the injuries raised in the petition, as well as new injuries subsequent to the petition, are appropriate. Recently the court made clear that any injuries alleged must be directly related to the original injury either as the same body part or a compensable consequence of the original injury. The applicant cannot simply use the petition to re-open to amend the claim to add additional body parts not related to the original injury.
The 3rd District Court of Appeals, in their recent decision of California Highway Patrol v. WCAB (Griffin) 75 Cal. Comp. Cases 1241, states that “new and further disability” is not defined in the statute and that judicial interpretation has not yet resolved all its potential meanings. However, while its meaning is not entirely clear, new and further disability has been judicially defined to mean disability resulting from some demonstrable change in an employee’s condition. Common examples the court gave of “new and further disability” are a recurrence of temporary disability, a change of a temporary disability into a permanent disability, a gradual increase in disability, or a new need for medical treatment. However, the court also said it may be “a disability in addition to that for which the employer previously provided benefits as required by the statute,” which is pretty vague.
In the recent case, the applicant signed a Stipulated Award that included language “This agreement resolves all issues of liability for any injury specific or cumulative for plaintiff’s entire period of employment with this employer.” The defendant said this language was included as part of the concession to agree to the future medical treatment. The applicant, in his petition to re-open alleged an injury to his shoulders that was not previously addressed.
However, both the trial judge and WCAB agreed that the applicant’s petition to reopen was allowed. The 3rd District Court of Appeals disagreed and said there were no grounds to reopen under either Labor Code section 5810 or in the alternative Labor Code section 5803.
To reopen under Labor Code section 5803, there must be a showing of good cause. Good cause may consist of new evidence that (1) must present some good ground, not previously known to the Appeals Board, which renders the original award inequitable, and that (2) must be more than merely cumulative or a restatement of the original evidence or contentions, and that (3) must be accompanied by a showing that such evidence could not, with reasonable diligence, have been discovered or produced at the original hearing.
The court also found that a petition to reopen for new and further disability requires a causal connection between the alleged new and further disability and the original industrial injury. As the court said, the new and further disability must be a result of or an effect of the prior compensable injury. This causal connection must be in the way of further injury to the same body part or injury to a new body part as a compensable consequence of the original injury.
Labor Code section 5410 also expressly requires the petition allege that “the original injury has caused new and further disability.” This means either the same body part or a compensable consequence injury.
In other words, the applicant cannot reopen a Stipulated Award to add a new unrelated body part not caused by the original injury.