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REOPENING A CASE

Right to Reopen for New and Further Disability: Labor Code §5410 provides: "Nothing in this chapter shall bar the right of any injured worker to institute proceedings for the collection of compensation, including vocational rehabilitation services, within five years after the date of the injury upon the ground that the original injury has caused new and further disability....The jurisdiction of the appeals board in these cases shall be a continuing jurisdiction within this period."

Right to Reopen for Good Cause:  Labor Code §5803 provides: "The appeals board has continuing jurisdiction over all its
orders, decisions, and awards made and entered under the provisions of this division, and the decisions and orders of the rehabilitation unit established under Section 139.5. At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor. This power includes the right to review, grant or regrant, diminish, increase, or terminate, within the limits prescribed by this division, any compensation awarded, upon the grounds that the disability of the person in whose favor the award was made has either
recurred, increased, diminished, or terminated.

The Court of Appeal in Royal Indem. Co. v. IAC (1966) 239 Cal. App. 2d 917 analyzed Labor Code §§5404, 5405, 5410, and 5803-5805: 

Sections 5404, 5405 and 5410 read together clearly contemplate (1) that an applicant must institute proceedings before the commission within one year after the date of the injury unless there has been voluntary payment of benefits, (2) that such voluntary payments will toll the statute of limitations during the continuation thereof but the period commences to run again upon the stoppage of such payments, (3) provided, however, that if there occurs a "new and further disability" arising from the original injury within five years from the date thereof, the employee may institute proceedings therefor and the commission has jurisdiction to hear, determine and make awards based upon, and limited to, such "new and further disability."

The Court of Appeal in Beaida v. WCAB (1968) 263 Cal.App.2d 204 discussed the availabilty of relief for "good cause" as an alternative theory: "5803 is available as an alternate source of supplementary relief. Liberally construed, the letter did not request reconsideration of the original award; rather, its theme was that the award fell short of the eventual disability, hence was inadequate and should be augmented. Thus it expressed "good cause" for an increased award for increased disability under section 5803."

The practitioner when reopening may need to argue facts that bring the case under both section 5410 and 5803, citing facts that support either or both. It is essential to allege that the original injury has caused new and further disability (see Labor Code §5410). Alternatively, argue newly discovered evidence or that the disability did not manifest itself until after the award issued.  In an unpublished but well reasoned opinion, the Court of Appeal in CHP v. WCAB (Griffin) (2010) (3d Appellate District, C062712) 2010 Cal. App. Unpub. LEXIS 9201 held: "By its express terms, section 5410 requires a causal connection between the alleged new and further disability and the original injury. However, a petition to reopen for good cause, other than new and further disability, under section 5803 does not require a causal connection to the original injury...the WCAB relied upon section 5803, to find under the facts in this case, where newly discovered evidence reveals a period of cumulative trauma during which industrially caused injuries developed, but the injuries did not manifest until after the issuance of the award, the original award is inequitable. Where the original award is inequitable because of facts unknown and unknowable at the time of the original award, the WCAB can assert its continuing jurisdiction under section 5803."

Label Item Links Comments
Labor Code Right to reopen for new and further disability

Right to reopen for good cause "rescind, alter, or amend any order, decision, or award."

Time limit for reopening

LC §5410

LC §5803

LC §5804

 
Regulations/Rules §10458. Petition for New and Further Disability: The jurisdiction of the WCAB under Labor Code Section 5410 shall be invoked by a petition setting forth specifically and in detail the facts relied upon to establish new and further disability.

If no prior Application for Adjudication has been filed, jurisdiction shall be invoked by the filing of an original Application for Adjudication.
8 CCR §10458  
Cases  Court of Appeal in Royal Indem. Co. v. IAC (1966) 239 Cal. App. 2d 917 analyzed Labor Code §§5404, 5405, 5410, and 5803-5805: see above

There must be a causal connection between the orginal injury and the new disability: Liberty Mutual Ins. Co. v. IAC (1964) 231 Cal.App.2d 501

Beaida v. WCAB (1968) 263 Cal.App.2d 204: "5803 is available as an alternate source of supplementary relief. Liberally construed, the letter did not request reconsideration of the original award; rather, its theme was that the award fell short of the eventual disability, hence was inadequate and should be augmented. Thus it expressed "good cause" for an increased award for increased disability under section 5803."

Informality of pleading to reopen: "the common law long ago discarded the primitive rules of rigid pleading; to impart that formalism into the proceedings of workmen's compensation would constitute nothing less than an ironic anachronism." Bland v. WCAB (1970) 3 Cal.3d 324

CHP v. WCAB (Griffin) (2010) (3d Appellate District, C062712) 2010 Cal. App. Unpub. LEXIS 9201. See above
Royal Indem. Co. v. IAC


Liberty Mutual Ins. Co. v. IAC


Beaida v. WCAB








Bland v. WCAB
 
Forms Petition to Reopen  Reopen   
Websites    
     
Practice Tips  When settling a case by Stipulations with Request for Award, advise client in the Informed Consent: "I understand that a "Petition to Reopen" my case (to obtain further medical treatment or additional disability compensation when there is a substantial worsening of my condition) MUST BE FILED WITHIN FIVE (5) YEARS OF THE DATE OF THE ORIGINAL INJURY, which date is set forth in the settlement agreement. I acknowledge that it is my obligation to keep my attorney informed about any changes in my condition that might warrant the filing of a petition to reopen, and to advise my attorney of my whereabouts during the 5-year period."

Similarly advise client after a Findings and Award issues.
   
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Information & Assistance Unit guide 11: How to file a petition to reopen    I&A Guide  
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