Home > Uncategorized > No Right to Re-Open Based on Unrepresented Stips

No Right to Re-Open Based on Unrepresented Stips

Hello, dear readers!

Another weekend is just a distant memory, and here your humble blogger is, with a smile from ear to ear and a blog post from computer screen to computer screen.

Today’s post is on the beloved subject of new and further disability.  Applicant’ sustained an admitted injury to the left upper extremity way back in 2010.  He requested and received a panel QME, and the report was rated by the DEU.  The PQME’s original report provided a rating for grip loss AND elbow loss of motion, yielding 14% WPI.

But the stipulations were approved at 4% permanent disability.  Applicant subsequently retained counsel and filed a timely petition to reopen for new and further disability – it appears to your humble blogger that the DEU rater had rejected the PQME’s use of grip loss in the presence of range of motion (Huzzah!) and the unrepresented injured worker didn’t know any better.

What do you think, dear readers – does wanting a second bite at the apple (this time using an attorney’s teeth rather than one’s own) entitle an applicant to reopen the case?

The WCAB (and the WCJ) both said no.

From the WCJ’s Report and Recommendation, it appears that the issue of inadvertence on the part of the injured worker in agreeing to the original stipulations was not raised at trial, and, even if it was, that’s not a basis to set aside a contract anyway.

Furthermore, the PQME offered his opinions after the petition was filed – applicant is no worse now that he was at the time of the original stipulations.

There appears to be some misconception floating around in some pockets of the workers’ compensation world that “new and further” is ancient Latin for “give me more money.”  It’s not – in order to reopen your case you actually need to have more of a claim.  The WCJ cited authority to the effect that “[f]or disability to be new and further, it must be ‘in addition to that disability for which proceedings were timely commenced or for which compensation was already paid’.”

A change in the law also presents good cause to reopen or modify an award (Knowles v. WCAB (1970)) but no change in law was articulated here.

Now, here’s a fun thought – think back to Dahl, dear readers – that wonderful , beautiful opinion from the Court of Appeal.  How many cases are there out there that stipped out or were issued an award based on voc-rehab reports that are no longer valid under Dahl?  How many Awards were issued based on the very methodology and reasoning that was applied therein?  If your DOI is late 2010-2013, it might not be too late to file a petition to reopen, citing a change in law.

What do you think, dear readers?  Is your humble blogger off his proverbial rocker once again?  Or should we take Dahl and clean up some of those old files?

Categories: Uncategorized Tags:
  1. No comments yet.
  1. No trackbacks yet.