Maria Rodriguez claimed injury to her left foot, bilateral ankles, left knee, left hip, low back, psyche and sleep disorder while employed as a housekeeper by defendant Southland Lutheran Care Center on November 13, 2008.

On March 7, 2012, a Findings, Award and Order issued, sustaining injury to all claimed body parts save sleep disorder, and awarding temporary and permanent disability.

Rodriguez filed a Petition to Reopen for New and Further Disability on June 13, 2013. Following the Petition to Reopen, Daniel Capen, M.D. continued to serve as applicant’s primary treating physician, and authored multiple interim reports in 2013. On January 22, 2015, AME Dr. Craemer reevaluated applicant’s orthopedic complaints. Internal medicine QME Minal Borsada, M.D. authored a medical-legal evaluation of applicant on February 8, 2016,

The parties proceeded to trial on January 2, 2019, and framed issues of the petition for new and further disability and the substantiality of the AME reporting. The WCJ issued the F&O on June 10, 2019, finding AME Dr. Craemer’s reporting to constitute substantial medical evidence and dismissing the June 13, 2013 petition for new and further disability. The WCAB denied her Petition for Reconsideration and affirmed the F&O in the panel decision of Rodriguez v Southland Lutheran Care Center ADJ6692602 (July 2022)

On reconsideration Rodriguez argued that the reporting of AME Dr. Craemer was not substantial medical evidence for want of diagnostic testing and a correct forensic analysis. and further contends the WCJ should have relied on the reporting of panel Qualified Medical Examiner Dr. Borsada to find that applicant’s diabetes was aggravated as a result of her industrial injuries.

The WCAB panel said that to “recover additional benefits, the injured worker must not only file a timely petition to reopen but must also have suffered a “new and further disability” within that five-year period, unless there is otherwise “good cause” to reopen the prior award. (Sarabi v. Workers’ Comp. Appeals Bd. (2007) 151 Cal.App.4th 920, 925 [72 Cal.Comp.Cases 778]. at p. 926.) An 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 limitation period has run.”

Here, applicant’s date of injury is November 13, 2008, and applicant must establish a “demonstrable change in condition” prior to the expiration of the five-year statutory period on November 13, 2013.

The WCJ noted that the reporting of primary treating physician Dr. Capen in 2013 continued to find applicant Permanent & Stationary. With respect to the right knee surgery, Dr. Capen made no mention of the need for surgery prior to November 13, 2013, and his report of February 27, 2014 described the right knee as “not a part of applicant’s claim and not connected to her injury.”

With regard to the diabetes, the WCAB noted that “With respect to applicant’s assertion of aggravation of her diabetic condition, we observe that neither the reporting of Dr. Zlotolow nor that of Dr. Borsada provided an assessment of whether the alleged change in applicant’s condition transpired within five years from the original date of injury.”

“Applicant has not met the burden of establishing a new and further disability, arising within five years of the date of injury.”