Authorities as the decision cited them, with how this panel applied each one.
Labor Code sections 5900(a), 5902, 5903
A petition for reconsideration may be taken only from a final order, decision, or award.
The WCJ's decision included threshold issues making it a final order subject to reconsideration.
From the decision · page 6II.
A petition for reconsideration may properly be taken only from a "final" order, decision,
or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either
"determines any substantive right or liability of those involved in the case" (Rymer v. Hagler
(1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer)
(1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v.
Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661])
or determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v.
Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].)
Interlocutory procedural or evidentiary decisions, entered in the midst of the workers'
compensation proceedings, are not considered "final" orders. (Maranian, supra, at p. 1075
["interim orders, which do not decide a threshold issue, such as intermediate procedural or
evidentiary decisions, are not `final'..."]; Rymer, supra, at p. 1180 ["[t]he term [`final'] does not
include intermediate procedural orders or discovery orders"]; Kramer, supra, at p. 45 ["[t]he term
Labor Code section 5411; Sarabi v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 920
To reopen a prior award, the injured worker must file a petition within five years and show new and further disability or good cause to reopen.
The WCJ and WCAB applied this standard to find good cause to reopen the April 18, 2007 Award based on new and further disability evidence.
From the decision · page 8not only have filed a petition to reopen within five years from the date of injury but must also have
suffered a "new and further disability" within that five-year period, unless there is otherwise "good
cause" to reopen the prior award. An injured worker therefore cannot confer jurisdiction on the
Board by filing a petition to reopen an award before the five-year period has expired for anticipated
new and further disability to occur thereafter. (Sarabi v. Workers' Comp. Appeals Bd. (2007) 151
Cal.App.4th 920, 926, [72 Cal.Comp.Cases 778]; Nicky Blair's Rest. v. Workers' Comp. Appeals
Bd. (Macias) (1980) 109 Cal.App.3d 941 [45 Cal.Comp.Cases 876].)
Labor Code section 5412
The date of injury for cumulative trauma under Labor Code section 5412 is the date when disability first manifests.
The WCAB found the date of injury for the cumulative trauma in ADJ10346752 to be October 17, 2016, based on medical evidence, making the Petition to Reopen timely.
From the decision · page 10IV.
We next address defendant's contention that in ADJ10346752, the WCJ did not decide
whether the Petition to Reopen filed on January 9, 2020 was timely. (Petition, at p. 6.) The WCJ
found that "[t]he undated Petition to Reopen was filed on January 9, 2020." (Findings of Fact No.
1.) Defendant argues that the parties stipulated and the WCAB approved the Stipulations with
Request for Award for a date of injury of March 28, 1986 to January 16, 2012. (Petition, at p. 6.)
As the Petition was filed more than five years from the end date of the cumulative trauma injury,
January 16, 2012, defendant argues it is untimely. (Id.)
Workers' compensation pleadings may be amended by the Appeals Board to conform to
proof, based on evidence submitted at trial. (Cal. Code Regs., tit. 8, § 10517; Rubio v. Workers'
Comp. Appeals Bd. (1985) 165 Cal.App.3d 196, 199-200 [50 Cal.Comp.Cases 160].) The parties'
stipulations are not binding on the Appeals Board or the WCJ and the Appeals Board or the WCJ
may reject or amend a stipulation and base the decision on the evidence presented at the hearing.
(Lab. Code, § 5702; Cal. Code Regs., tit. 8, § 10517; Rubio, supra; Draper v. Workers' Comp.
Appeals Bd. (1983) 147 Cal.App.3d 502 [48 Cal.Comp.Cases 748]; Turner Gas Co. v.