14 Jul 2019

California: Is There Any Limit to What Will Constitute an Acceptable Petition to Re-open?

In California Workers’ Compensation, it is well established that some sort of petition must be filed in order for an employee to “re-open” his or her claim. Pursuant to Labor Code Sections 5803, 5804 and 5410, in order to alter or amend a previously issued order, decision or award of the Workers’ Compensation Appeals Board (WCAB), a petition must be filed within five years from the date of injury. However, these statutes do not require that the petition take any particular form.

In fact, the courts have been extremely liberal in defining what constitutes a “petition to re-open”. Since approximately 1968, the cases addressing this question have indicated that pretty much any document filed with the WCAB within the five-year period can be construed as “petition to re-open”. As long as a document is timely filed with the WCAB and provided that the defendant has some notice that a claim of new and further disability is being alleged, an acceptable petition has been found to have been filed.

Recently, a Workers’ Compensation Administrative Law Judge (WCALJ) found that although the applicable cases do argue for a liberal interpretation of what constitutes a “petition to re-open”, it must be the employee (or an individual acting on behalf of the employee) that actually files the alleged “petition”. In short, it cannot be the employer or defendant the files the document that becomes the “petition to re-open” (Johnson v. Knowledge Universe/Kindercare; Arch Insurance Company, ADJ9953749).

Interestingly, in Johnson, the applicant’s attorney had filed an Application for Adjudication of Claim, and related documents, on defendant within the five-year period. However, those documents did not get timely filed with the WCAB. The defendant’s Answer, which did get timely filed, clearly acknowledged the receipt of the employee’s Application, but since it was not filed by the employee it could not constitute the “petition to re-open”, according to the WCALJ.

In conclusion, the extremely well-reasoned decision in Johnson would indicate that it must be the employee or his or her representative that timely files the alleged “petition to re-open”. However, there is a second “take-away” from Johnson. Increasingly, there is a practice amongst applicants’ attorneys of waiting to file the opening documents with the WCAB. The delay in filing of these documents will, as was seen in Johnson, create unnecessary and difficult to overcome Statute of Limitations issues.

Practitioners should check the subsequent history of any cases before citing to them.

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.