ADJ9551349 — California WCAB decision

What the panel ordered

Petition for reconsideration granted; WCJ's decision rescinded and matter returned to trial level for further proceedings and decision.

Defendant sought reconsideration of the WCJ's Third Findings of Fact, Award and Order of July 31, 2023, which found new and further disability and 26% permanent disability. The WCAB previously rescinded an earlier award and remanded for further record development and clarification on new and further disability and apportionment. This decision again grants reconsideration, rescinds the WCJ's decision, and remands for further proceedings.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

ApportionmentRemandedright wrist

The WCJ's findings on apportionment were unclear. The Board clarified that apportionment of new and further disability is determined de novo and not automatically subject to the original stipulation. The issue is remanded for further development and analysis.

From the decision · page 4While any apportionment decision is res judicata as to the permanent disability in the original decision, and may only be revisited if good cause exists under Labor Code section 5803, any apportionment of new and further disability is determined de novo. Thus, to the extent that there was any new and further permanent disability, the 6% reduction of permanent disability previously stipulated to must be reflected in any future award, unless section 5803 good cause exists to revisit it, but the existence or nonexistence of apportionment of the new and further disability is to be determined by the physicians reporting in the reopening proceedings.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

No new evidence was procured or analyzed regarding whether applicant's condition worsened during the statutory period for new and further disability.

Favours neutral

The absence of new evidence and analysis on this point led the Board to remand for further development of the record.

From the decision · page 2Despite sending this matter back for development of the record and analysis on the issues of whether applicant sustained any new and further disability and apportionment, it does not appear that this was ever done. With regard to the issue of new and further disability, no new evidence was procured, and the analysis erroneously focuses on whether a timely Petition to Reopen was filed and whether that Petition contained the requisite specificity, rather than the issue of whether applicant's condition worsened during the statutory time period. With regard to apportionment, the WCJ's findings became less clear rather than more clear. We will therefore grant reconsideration, rescind the WCJ's decision, and again return this matter for further development of the record, analysis, and decision. We quote the relevant portions of our previous Opinion after Reconsideration below. While our directive to further develop the record is addressed to all parties, we reiterate the axiom that the applicant has the burden of proof. (Lab. Code, § 5705; see § 3202.5.)

The WCJ's findings on apportionment were unclear and did not properly address whether apportionment should apply de novo to new and further disability.

Favours neutral

This lack of clarity required remand for proper analysis under the correct legal standard.

From the decision · page 4While any apportionment decision is res judicata as to the permanent disability in the original decision, and may only be revisited if good cause exists under Labor Code section 5803, any apportionment of new and further disability is determined de novo. Thus, to the extent that there was any new and further permanent disability, the 6% reduction of permanent disability previously stipulated to must be reflected in any future award, unless section 5803 good cause exists to revisit it, but the existence or nonexistence of apportionment of the new and further disability is to be determined by the physicians reporting in the reopening proceedings.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, § 5410; Ruffin v. Olson Glass Co. (1987) 52 Cal.Comp.Cases 335, 343 [Appeals Bd. en banc]; Sarabi v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 920, 926 [72 Cal.Comp.Cases 778]; Applied Materials v. Workers' Comp. Appeals Bd. (2021) 64 Cal.App.5th 1042, 1080 [86 Cal.Comp.Cases 331]

Applicant must file a petition to reopen within five years from the date of injury and must have suffered new and further disability within that period, unless there is good cause to reopen the prior award.

The Board reiterated that both timely filing and actual new and further disability within the five-year period are required for compensability.

From the decision · page 2As the Court of Appeal has held, in order for new and further disability to be compensable, an applicant, "must not 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. (Ruffin v. Olson Glass Co. (1987) 52 Cal.Comp.Cases 335, 343 [Appeals Bd. en banc].) An injured worker therefore

Lab. Code, § 5803; Bernal v. Workers' Comp. Appeals Bd. (1982) 47 Cal.Comp.Cases 792; MacDonald v. Western Asbestos Co. (1982) 47 Cal.Comp.Cases 365

Any apportionment of new and further disability is determined de novo and not automatically subject to the original stipulation; prior apportionment is res judicata only as to the original award unless good cause exists under section 5803.

The Board clarified that apportionment for new and further disability must be determined based on the evidence in the reopening proceedings, not simply carried over from the original award.

From the decision · page 4While any apportionment decision is res judicata as to the permanent disability in the original decision, and may only be revisited if good cause exists under Labor Code section 5803, any apportionment of new and further disability is determined de novo. Thus, to the extent that there was any new and further permanent disability, the 6% reduction of permanent disability previously stipulated to must be reflected in any future award, unless section 5803 good cause exists to revisit it, but the existence or nonexistence of apportionment of the new and further disability is to be determined by the physicians reporting in the reopening proceedings.

ADJ9551349 · October 20, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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