Reopening A Workers’ Compensation Claim – New and Further Injury

It’s been three years since you were injured in a work-related accident. The months and months of treatment, the endless deluge of utilization reviews and the pages and pages of doctors’ reports are beginning to fade from memory at last. After finally reaching that point of maximum medical improvement that seemed to never come, you are released to work fully, receive a permanent disability percentage and an award for settlement in the form of money and future medical care. Things seem to be close to normal.

But what happens when that injury that you thought was gone starts to rear its head once again, perhaps worse than it was before. The doctor orders additional testing and you learn that the injury has indeed worsened. Thankfully, under California law, you may have an opportunity to re-open your worker’s compensation claim and obtain additional benefits by filing a petition for “New and Further.”

What is the timeline for reopening a Work Comp Claim?

Three years have passed since you were originally injured while at work and you may be wondering whether it’s been too long since the date of injury to do anything about your worsening injury. Lucky for you, it may not too late. So, when is it too late? Well, Per the California Labor Code, a petition to reopen must be filed within five years from the date of injury. This time limit is a strict time limit and must be met regardless of whether medical or other benefits have continued to be paid. The first hurdle in reopening your workers compensation claim has been met, but there may be a question as to what the date of injury is and this may differ depending on whether the injury is a specific or cumulative injury.

What is the date of injury? Cumulative vs. Specific

A specific injury, or one where the date, time and location of an injury is more easily ascertainable, is codified in section 5411 of the Labor Code. Under this section, “the date of injury, except in cases of occupational disease or cumulative injury, is that date during the employment on which occurred the alleged incident or exposure, for the consequences of which compensation is claimed.” For specific injuries, the date of injury is easily determined. However, a cumulative injury, often resulting from the daily wear and tear of your job or a gradual injury arising out of, and in the course of employment, presents a little more difficulty in determining the date of injury.
For a cumulative injury, section 5412 comments that, “The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.”

SOC §6.25
Robinson v. WCAB (1997) 62 CCC 825.
California Labor Code §5411

Given the specific injury that occurred three years ago, it is clearly within the five-year period, still looking good to reopen your claim.

What is the Threshold to allow for reopening a claim for New and Further injury?

Whether a claim can be reopened for new and further disability will hinge on whether there is “Good Cause” to do so. Once good cause is determined, a finding of good cause to reopen has the effect of throwing open the entire case for reconsideration, and the Workers’ Compensation Judge must address all facts and issues raised by the parties.[1] Good cause can be liberally construed and may utilize evidence including additional medical evaluations or records. However, a petition to reopen needn’t be supported by medical evidence at the time of filing. An applicant needn’t obtain proof of new and further disability within five years of the injury.[2] Medical evidence acquired more than five years after the date of injury may be used to support a timely petition to reopen. [3]

In this case, the newly requested testing and diagnostics that were performed revealed additional and worsening injuries. It is likely that there is a good cause to reopen the claim, and your next hurdle has been cleared.

How Do You Officially Reopen A Past Claim?

Typically, a petition to reopen the previously settled workers’ compensation claim is filed with the Workers’ Compensation Appeals Board (WCAB) citing the facts and evidence relied on in believing that there is good cause to reopen and that there may be new and further disability present. However, this is not a strict requirement, and courts have found that other pleadings or evidence may be sufficient to support the reopening of a claim. For example, the Workers’ Compensation Board found that an AME report made within five years of the original date of injury claiming that the condition had worsened was sufficient to justify the reopening of a claim.[4] What can serve as notice of or as a petition to reopen is left to the discretion of the WCAB.

Thankfully, if you are represented by the amazing team at Mastagni Holstedt, we will have filed a petition on your behalf with the workers’ compensation board within the time limit. Another hurdle cleared. Your claim is officially reopened. So, what next?

What are you entitled to?

If it is determined that there is indeed a new and further injury that is directly related to your initial work-related injury, there are benefits that you may be entitled to.

[1] Bundy v. County of San Luis Obispo, 2023 Cal. Wrk. Comp. P.D. LEXIS 261.

[2] SOC §6.25

[3] See Continental Baking Co. and Ralston-Purina Co. v. WCAB (Williams) (1997) 62 CCC 1705 (writ denied); CIGA v. WCAB (Winters) (2006) 71 CCC 814 (writ denied); Dixon v. G2 Secure Staff, LLC, 2015 Cal. Wrk. Comp. P.D. LEXIS 747; Vallejo v. David Pirio Vineyard Management, 2019 Cal. Wrk. Comp. P.D. LEXIS 244.

[4] SOC §6.25

These may include medical expenses, temporary disability and in some cases additional benefits due to an increase in permanent disability.

With respect to the temporary disability benefits, if you are forced to miss work due to the worsening injury and you have not used up the allotted temporary benefits previously, you will likely be entitled to the remainder of those benefits. However, it should be noted that these benefits will lapse after five years from the date of the original injury.

Lastly, if it is determined by a physician that there is an additional permanent disability more than what was previously awarded, you may be entitled to additional financial compensation for that increased permanent disability.

Settlement via Stipulation and Award vs. Compromise and Release

Reopening a worker’s compensation claim is generally limited to those claims which were settled by Stipulation and Award and thus left open your future medical care. In instances where a claim was settled via a Compromise and Release, that is, a lump sum settlement in consideration of your permanent disability percentage as well as your potential costs of future medical care, reopening your claim is generally not possible and you will be forced to file a new workers’compensation claim. However, there are a few exceptions under which a C&R can be reopened including if the C&R was obtained through fraud or mutual mistake. Insidious deterioration not known at the time of settlement may also allow for the reopening of a C&R settlement.

How Often Can You Reopen a Claim?

Provided you have met all the necessary requirements, a worker’s compensation claim can be reopened multiple times and is not limited to a single re-opening.

So, if it’s nearly five years since your workers’ compensation date of injury and you believe you are suffering from a new or worsening disability of that injury, do not miss out on the opportunity to protect your right to additional benefits. The attorneys at Mastagni Holstedt are here to help.