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Industry Insights

Grinberg: Applicant Fails to Carry Burden on New-and-Further Petition

  • State: California

I don’t mind sharing with you that not much warms the cold, dark heart of a workers’ compensation defense attorney like the proper application of the statute of limitations.  Isn’t it enough to bring a tear to one’s eye? This is particularly the case when a petition to reopen for new and further disability is denied on those very grounds.

Gregory Grinberg

Gregory Grinberg

New and further petitions are those frustrating things in our beloved swamp of workers’ compensation that can drive a person mad. After all, even when you’re done with a case, you’re not really done. One can picture Michael Corleone receiving a petition to reopen and saying boldly to the camera, Just when I thought I was out, they pull me back in!”

Well, allow me to submit to you the panel decision in the case of Rodriguez v. Southland Care Center. There, applicant resolved her workers’ compensation claim for a 2008 injury via stipulated award, only to reopen it in 2013. The original injury was orthopedic in nature as to the left foot, bilateral ankles, left knee, left hip, low back and psych. 

A true testament to the longevity of these claims is that 14 years later, litigation is ongoing. Can you picture a father sitting at a conference room table with his daughter, lovingly handing over a file? “I received this referral when you were just starting high school, and now that you’ve finished law school, I can pass this on to you.” Such moments really are what parenting is all about. 

Well, as parties tend to do, they returned to the agreed medical evaluator, who determined that the industrial condition was stable and unchanged from the prior P&S report. But applicant had arguments of her own to push the petition: The AME did not order any diagnostics, so his report can’t possibly be substantial medical evidence. And what about her diabetes that was aggravated by her condition? And what about her right knee surgery in 2014?

Well, after discovery and trial, the judge dismissed the petition to reopen, reasoning that the medical reporting from treating physicians ostensibly supporting additional disability (particularly as to the diabetes) was not obtained until after the five years from the original injury had run. 

In short, even if applicant testified to existing complaints prior to the five-year mark, the medical evidence supporting that contention was not obtained until after the statute had run. Nor is there any absolute requirement to obtain testing if, in the opinion of the medical expert, it is not necessary.

Can you imagine if a medical report for an industrial paper cut was held to be not substantial evidence because there was no imaging of the finger ordered?

In upholding the dismissal, the Workers' Compensation Appeals Board held that “[a]n injured worker cannot confer jurisdiction on the WCAB by filing a petition to reopen before the five-year period has expired for anticipated new and further disability that may occur after the five-year imitation period has run.” 

There was no evidence in existence prior to the five-year mark that the right knee was part of the claim, whether as an original injury or a compensable consequence. There was further no evidence that the diabetes was related to the industrial injury or that the disability arose within five years from the original injury. 

Despite what so many applicants' attorneys would love for us all to forget, the applicant still bears the burden of proof on many aspects of his or her workers’ compensation case. Among those — that there is new and further disability — merely filing a petition does not shift the burden to the defense to disprove new and further disability. How silly would it be if the filing of a defense petition to reduce permanent disability would shift the burden to applicant to prove no improvement?

Additionally, it is important to remember that even if a petition is filed four years and 364 days after the original date of injury, that is not the time for applicant’s counsel to roll up his or her proverbial sleeves and go trolling for evidence. The evidence of new and further disability must exist prior to the five-year mark. Not all of it, mind you, but enough contemporaneous evidence for a subsequent med-legal to find the disability existed prior to the running of the statute. 

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.

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