Case BriefDiscoveryApplicant’s Petition to Reopen Denied because Claimed Injuries Were Not New

June 28, 20180

ONTIVEROS vs. BRAGG INVESTMENT COMPANY
(2018) 46 CWCR 37

Applicant sustained injury to his left knee on May 9, 2008.  The case settled by Stipulations with Request for Award on October 12, 2012.  On March 14, 2013, applicant filed a Petition to Reopen for New and Further Injury, including injury to the psyche and hypertension as compensable consequences of the knee injury.

The parties agreed to arbitration and the Arbitrator found that applicant sustained injury to the psyche and hypertension as compensable consequences of the original injury.  However, he also found that the WCAB lacked jurisdiction to award new and further disability benefits.

Applicant filed a Petition for Reconsideration which was denied.

The Commissioners reviewed the medical evidence and determined that an internal medicine specialist in the original case reported that applicant’s hypertension had been detected some time in 2009.  Likewise, a psychiatrist noted that applicant had developed emotional symptoms after the 2008 injury and that those symptoms worsened in 2012.  Based on these medical reports, the applicant’s injuries were not “new and further” within the meaning of Labor Code Section 5410.

Further, applicant did not seek any medical treatment for the injury to the psyche until August 2014, more than five years from the date of injury.  Therefore, any disability arising out of the hypertension occurred more than five years from the date of injury and the Board lacked jurisdiction to award additional benefits.

Written by Edward L. Hummer, Associate Attorney in our Santa Rosa office, June 2018.

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