CA WCAB Panel Clarifies Requirements for Reopening an Award

Sacramento, CA - Officer Jeffrey Wall injured his right knee during a foot pursuit of a felony suspect while employed as a Deputy Sheriff by the County of Sacramento as a deputy sheriff on April 11, 2015.

By Stipulations in December 2016, the parties agreed that he sustained injury AOE/COE to his right knee. The Stipulations did not include any reference to a right shoulder injury claim.

After the stipulation, Wall filed a timely Petition to Reopen his injury claim and amended the claim to include injury his right shoulder.

The parties proceeded to trial on September 25, 2020. Wall submitted an offer of proof stating: "Applicant would testify that at the time of the stipulations entered into in December 2016, he had no problems to his right shoulder."

The WCJ found that Officer Wall showed good cause to reopen the injury claim and applicant sustained new and further disability as a result of the April 11, 2015 injury. Reconsideration of this finding was denied in the panel decision of Wall v County of Sacramento - ADJ 10046347 (March 2022).

On reconsideration the County contends that applicant was aware that he injured his right shoulder at the time that the parties submitted the Stipulations with Request for Award, so there is no good cause to reopen the injury claim.

In rejecting this contention, the panel reviewed the current law on the requirements of granting a Petition to Reopen.The employer argued that the case of Nicky Blair’s Restaurant v. Workers’ Comp. Appeals Bd., (1980) 109 Cal. App. 3d 941, 45 Cal.Comp.Cases 876, established the principle that reopening for "good cause" does not permit an attempt to simply re-litigate the original award.

There was no dispute that on February 11, 2015, while chasing a suspect, Officer Wall slipped and fell, landing on his right knee and shoulder, and that he sustained an abrasion and/or contusion to his right shoulder.

However, at no time prior to the December 15, 2016 Stipulations did he receive medical treatment for his right shoulder. Nor is there any evidence that he had any right shoulder disability before the parties settled the right knee injury claim.

The first treatment report indicating that applicant sustained an injury to his right shoulder was dated February 13, 2018. "Defendant provides no explanation as to how the February 13, 2018 report and the various treatment notes thereafter, could have been discovered and produced prior to the December 15, 2016 award. Nor does defendant refer to any evidence indicating that the February 13, 2018 report, and the subsequent right shoulder treatment reports, were merely cumulative or a restatement of the original evidence."

The WCAB panel concluded that "defendant’s reliance on the Nicky Blair’s decision is inconsistent with the evidence submitted in this matter."

Based on the record, there is no evidence that applicant sustained a compensable "injury" to his right shoulder prior to the 2015 stipulation. A compensable injury by definition requires either medical treatment, or compensable disability. Officer Ward had neither of these before the 2015 stipulation, and thus the shoulder is "new and further" not re-litigating something that existed before the award.

Source: WorkCompAcademy.com

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