California Labor Code section 5410 allows applicants to petition the Workers’ Compensation Appeals Board to reopen their cases previously resolved by stipulation, assuming the injury has caused “new and further disability.”  For those of us just joining the world of workers’ compensation, that means that fifty four months after the date of injury, without fail, even if the order approving the stipulations has yet to cool from the heat of the copy-machine, the defense can except a crisp new petition, claiming new and further disability.

What constitutes new and further disability?  Well, according to a recent panel decision, a change in the law will work.  In the case of Tuyet Tran v. Cong Tran, applicant sustained an injury to her upper extremities.  The panel Qualified Medical Evaluator included grip loss in the rating, but the stipulations eventually reflected his opinions without the grip loss (recall if you dare, dear readers, those golden years before the insanity of Almaraz/Guzman).

Well, applicant filed a petition to reopen.  The panel QME found no new and further disability – applicant was as disabled at the filing of the petition as she was at the time of the stipulations.  But what of the change in the law under Almaraz/Guzman?  After all, a change in the law is good grounds for a petition to re-open.  (See Kenneth H. Knowles v. Workmen’s Compensation Appeals Board.)

While the workers’ compensation Judge found that applicant’s petition to reopen would bring her no new further loot from the defendant’s coffer, the Workers’ Compensation Appeals Board granted reconsideration. The WCAB reasoned that the change in the law brought about by the several appeals and decisions in Almaraz/Guzman made such a change in the law as to justify a petition to reopen.

Here’s a fun thought – if an applicant with a pre-A/G stipulation can petition to reopen and claim the right to hook an injury up to the A/G machine and start inflating away, could a defendant do the same?  What I mean is, of course, A/G has been used in the past to decrease whole person impairment, couldn’t the defense proceed under the same theory and put it to a QME to see if a lower rating is appropriate?

Have any of this humble blogger’s faithful readers made a try for this yet?