Case BriefDiscoveryMedical Evidence Not Required at Time of Filing Petition to Reopen for New and Further Disability

August 9, 20180

(2018) 46 CWCR 31

Applicant claimed injury to his cervical spine, lumbar spine, left wrist, and right shoulder from February 7, 2011 through April 11, 2012.  Based on the reporting of an Agreed Medical Evaluator, the case settled by Stipulations with Request for Award on March 1, 2016.

On March 22, 2017, applicant filed a Petition to Reopen.  However, the Petition to did not include any medical records to support a claim of new and further disability.

Defendant filed a Declaration of Readiness and the matter was set for Trial.  The issues for Trial were defendant’s contention that the Petition to Reopen did not comply with WCAB Rules 10455 and 10458 because it lacked supporting documentation; and the need for additional discovery, including a re-evaluation by the Agreed Medical Evaluator.

The Judge ordered the matter off calendar and ordered further development of the record, including a re-evaluation by the AME to determine the applicant’s orthopedic condition.

Defendant filed a Petition for Removal, arguing that the matter should have proceeded to Trial on the sufficiency of the evidence to support the Petition to Reopen.  The WCAB denied the Petition.

The Commissioners determined that Board Rules 10455 and 10458 do not require an applicant to provide medical evidence to support a claim for new and further disability at the time the Petition to Reopen is filed.  Instead, the applicant can preserve Board jurisdiction by filing a skeletal Petition and supporting it with medical evidence at a later time.

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

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