Menu Close

Leopoldo Benavides worked as a roofer. On February 7, 2005 he lost his footing and fell a distance of about 12 feet. The fall fractured his right ankle and injured his back. Benavides and his employer’s workers’ compensation insurance carrier agreed to a July 23, 2008, a stipulated award reflecting that Benavides’s injury had left him 51 percent permanently disabled. The stipulation was based upon the evaluations of the AME, orthopedic surgeon Roger S. Sohn, M.D.

After the stipulated award, Dr. Sohn examined Benavides again on December 28, 2010, and issued a new report increasing Benavides’s whole person impairment rating for the spine. This time, Dr. Sohn opined that Benavides had impairment secondary to the fractured femur and “increasing impairment” of the spine. In a subsequent deposition, Dr. Sohn explained that he changed his opinion based on the May 9, 2008 EMG finding, which he stated “automatically boost[ed]” Benavides’s DRE to a category V under the American Medical Association guidelines. Under further questioning, Dr. Sohn acknowledged that the EMG finding confirmed the decline in Benavides’s condition had occurred before the stipulated award was entered on July 23, 2008.

On February 8, 2010, Benavides filed a petition to reopen, alleging his condition had worsened and that his disability exceeded the rating provided by the July 23, 2008 stipulated award.  The WCJ initially denied the petition, concluding that Benavides had not sustained a new and further disability following that award. The WCJ vacated his initial finding and decision, after Benavides filed a petition for reconsideration. In his new findings and decision, the WCJ explained that Dr. Sohn now rated Benavides as more disabled than the July 23, 2008 stipulated award reflected, and Benavides should therefore be rated as 72 percent permanently disabled.

On reconsideration, a two-to-one majority of the appeals board disagreed. The majority found that Benavides had not sustained a “new and further disability” as required under Labor Code section 5410, because the decline in Benavides’s condition occurred before entry of the award. The majority also concluded that “good cause” to reopen the case under section 5803 was not established, because there was nothing “in the record to suggest that [Benavides] was unable to send the EMG study to Dr. Sohn before the award was issued.” In that regard, the majority noted that Benavides had not shown why the new evidence could not have been discovered and produced at a hearing held prior to the July 23, 2008 award.

In the unpublished decision of Benavides v WCAB, the Court of Appeal reversed and concluded there was good cause to reopen the case and annulled the decision of the appeals board and remand with directions to reinstate the WCJ’s award of a 72 percent disability rating.

Labor Code section 5803 accords the appeals board continuing jurisdiction to rescind or revise its awards, “upon good cause shown.” Such cause may consist of newly discovered evidence previously unavailable, a change in the law, or “any factor or circumstance unknown at the time the original award or order was made which renders the previous findings and award ‘inequitable.’ ” (LeBoeuf v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 234, 242) More specifically, an award based upon a stipulation may be reopened or rescinded if the “stipulation has been ‘entered into through inadvertence, excusable neglect, fraud, mistake of fact or law, . . . or where special circumstances exist rendering it unjust to enforce the stipulation.’ ” (Huston v. Workers’ Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 865-866)

Dr. Sohn issued a pre-award report rating Benavidas’s impairment without first requesting and reviewing an EMG, and the WCJ approved the parties’ stipulation, unaware of the fact that an existing EMG demonstrated Benavidas’s spinal condition was significantly worse than reflected in Dr. Sohn’s report. Whether the stipulation was the result of inadvertence, excusable neglect, or mistake of fact, the error justifies reopening the resulting award. “Indeed, when Benavides brought his petition to reopen, the evidence clearly established that the stipulated award was inequitable.”