New and Further Disability and a Timely Petition to Reopen
Labor Code Section 5410 allows for continuing jurisdiction at the Workers’ Compensation Appeals Board over a prior award when a timely petition is filed within five years from the date of injury. Specifically, Labor Code Section 5410 states, “[n]othing in this chapter shall bar the right of any injured worker to institute proceedings for collection of compensation within five years after the date of injury upon the ground that the original injury has caused new and further disability.” There must be a timely filed petition to re-open the case and the applicant has the burden or proving new and further disability within the five years after the original date of injury, or otherwise “good cause” to re-open the prior award.
New and further disability is typically additional temporary disability or permanent disability but could also be changes in the applicant’s condition or treatment regimen according to panel case Pascacio v. Jacobo Farm Services (2022) Cal. Wrk. Comp. P.D. LEXIS. Pascacio cites the case of Applied Materials v. Workers’ Comp. Appeals Bd. (2021) 64 Cal.App.5th, 1042 (Applied Materials) in order to define new and further disability. Applied Materials states, “disability resulting in some demonstrable change in the employee’s condition, including a gradual increase in disability, a recurrence of TD, a new need for medical treatment, or a change of a temporary disability into a permanent disability” (Id. At 1080.) The case of Pascacio is not binding as it is a panel case, but it does offer some insight into what is required to prove new and further disability and continuing jurisdiction of the Workers’ Compensation Appeals Board. There must be a demonstrable change in applicant’s condition prior to the five-year limitation per Labor Code 5410. As such, a petition to re-open cannot be utilized to have open ended treatment and re-evaluations with the QME or AME, if there was no demonstrable change in the employee’s condition prior to the five-year period in Labor Code Section 5410.
The relevant facts from Pascacio outline that the applicant timely filed a petition to re-open his claim, and close in time to the petition to re-open a surgeon stated there was a possibility for a surgery, however it was not requested, did not occur, and the AME upon re-evaluation found no new and further temporary or permanent disability, however surgery was a possibility for future medical care. Subsequently another neurosurgical consult was requested and authorized, a few months later the matter proceeded to trial on the issue of the validity of the petition to re-open. The WCJ at trial found that the applicant had not suffered any new and further disability within five years from the date of injury and dismissed the petition for new and further. The Appeals Board found the petition to be timely filed and found that the applicant conferred continuing jurisdiction of the Workers’ Compensation Appeals Board based upon the medical treatment recommended by the first surgeon around the time the case was petitioned to be re-opened. The decision of the WCJ was rescinded. However, the matter was ordered back to the trial level to develop the record, including issues of whether the surgery was medically necessary or if applicant is willing to undergo said surgery. This seems to indicate that there may not be any new and further disability upon further development of the record, if for example, the surgery is no longer recommended, not approved by UR/IMR, or perhaps no longer desired by the applicant.
Therefore, there must be a demonstrable change in the employee’s condition for the Workers’ Compensation Appeals Board to maintain jurisdiction under Labor Code Section 5410. A timely filed petition to re-open is not enough, as the applicant has the burden of showing there is new and further disability prior to the five-year period as outlined in Labor Code Section 5410. This prevents applicants from continuing to keep the case re-opened to treat for potentially a long period of time if the change in condition was not within five years of the original injury.