What the panel ordered
The WCAB affirmed the WCJ's Findings of Fact, denying defendant's Petition for Reconsideration and confirming that applicant showed good cause to reopen the injury claim and sustained new and further disability to the right shoulder from the April 11, 2015 injury.
Defendant sought reconsideration of the WCJ's November 13, 2020 Findings of Fact that applicant showed good cause to reopen the injury claim and sustained new and further disability from the April 11, 2015 injury.
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.
The applicant showed good cause to reopen the injury claim based on new medical evidence of right shoulder injury and disability not known at the time of the original award, supported by the AME's opinion that the right shoulder disability was industrially caused by the April 11, 2015 injury.
From the decision · page 1Defendant seeks reconsideration of the Findings of Fact (Findings), issued by the workers' compensation administrative law judge (WCJ) on November 13, 2020, wherein the WCJ found in pertinent part that applicant showed good cause to reopen the injury claim and applicant sustained new and further disability as a result of the April 11, 2015 injury.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
No medical treatment or disability for right shoulder was documented before the December 15, 2016 Stipulations and Award.
Favours Applicant prevailed
This showed the right shoulder injury and disability were not known or evaluated at the time of the original award, supporting reopening.
From the decision · page 3It appears there is no dispute that on February 11, 2015, while chasing a suspect, applicant slipped and fell, landing on his right knee and shoulder. There is also no dispute that in addition to his right knee injury, applicant sustained an abrasion and/or contusion to his right shoulder.2 Our review of the medical record indicates that at no time prior to the December 15, 2016 Stipulations did applicant receive medical treatment for his right shoulder. Nor is there any evidence that applicant had any right shoulder disability before the parties settled the right knee injury claim. Based on the code sections cited above, there is no evidence that applicant sustained a compensable "injury" to his right shoulder. In turn, applicant did not have "knowledge" of a right shoulder injury
The first medical treatment report for right shoulder was dated February 13, 2018, after the original award.
Favours Applicant prevailed
This new evidence was not discoverable with reasonable diligence before the award, supporting good cause to reopen.
From the decision · page 4Abelow's review of medical records includes references to treatment reports pertaining to applicant's right shoulder. (See Joint Exh. 102, pp. 36, 38, and 39.) The first report of treatment for applicant's right shoulder was by Dr. Michael Cohen, dated February 13, 2018. (Joint Exh. 102, p. 36.) Clearly, applicant's right shoulder injury had not been "completely evaluated" at the time Award was issued. Defendant also cites Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd., (1980) 109 Cal. App. 3d 941, 45 Cal.Comp.Cases 876] (Nicky Blair's) as support for its argument that there was no good cause to reopen applicant's claim. In its decision the Second District Appellate Court stated:
AME Dr. Abelow opined 100% of right shoulder disability was due to the April 11, 2015 industrial injury.
Favours Applicant prevailed
This expert opinion provided substantial evidence causally linking the new disability to the original injury, supporting reopening.
From the decision · page 2Treatment for the right shoulder and right elbow is due to the industrial injury of 4/11/15... It is my opinion, with reasonable medical probability, that 100% of the permanent disability to the right shoulder is due to the industrial injury of 4/11/15. It is my opinion, with reasonable medical probability, that 0% is due to nonindustrial causes. (Joint Exh. 102, p. 26.)
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
100% of the permanent disability to the right shoulder is due to the industrial injury of 4/11/15; 0% due to nonindustrial causes.
Dr. Abelow reviewed medical records and treatment history, concluding the right shoulder disability was industrially caused by the April 11, 2015 injury.
From the decision · page 2On January 7, 2020, orthopedic agreed medical examiner (AME) Stephen P. Abelow, M.D., evaluated applicant. (Joint Exh. 102, Dr. Abelow, January 8 and 9, 2020.) Dr. Abelow examined applicant, took a history, and did an "[e]xtensive medical review" for treatment applicant received during the period from 2007 through 2019. (Joint Exh. 102, p. 2; pp. 32 - 48.) The diagnoses included:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (1980) 109 Cal. App. 3d 941
Good cause to reopen requires new evidence not previously known, which renders the original award inequitable, is more than cumulative, and could not have been discovered with reasonable diligence at the original hearing.
Applied to deny defendant's argument that reopening was improper because the new evidence was not previously known and was not cumulative.
From the decision · page 4The principle of reopening for "good cause" does not permit an attempt to simply relitigate the original award. A petition to reopen may not be used to litigate issues which should have been raised by a timely petition for reconsideration. "Good cause" to reopen does not consist of medical evidence obtained subsequent to the original decision which merely disagrees with the medical
What proof carried it
The evidence the panel weighed, by kind.
Applicant testified he had no problems with his right shoulder at the time of the December 2016 Stipulations.
From the decision · page 2The parties proceeded to trial on September 25, 2020. Applicant 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." (Minutes of Hearing and Summary of Evidence
Medical treatment reports for right shoulder began after the December 2016 Award, starting February 13, 2018.
From the decision · page 4Abelow's review of medical records includes references to treatment reports pertaining to applicant's right shoulder. (See Joint Exh. 102, pp. 36, 38, and 39.) The first report of treatment for applicant's right shoulder was by Dr. Michael Cohen, dated February 13, 2018. (Joint Exh. 102, p. 36.) Clearly, applicant's right shoulder injury had not been "completely evaluated" at the time Award was issued. Defendant also cites Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd., (1980) 109 Cal. App. 3d 941, 45 Cal.Comp.Cases 876] (Nicky Blair's) as support for its argument that there was no good cause to reopen applicant's claim. In its decision the Second District Appellate Court stated:
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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