The Fifth District Court of Appeal, in an unpublished opinion, has ruled that just because an injured worker may "know" of a body part that may have been involved in a work incident, this doesn't preclude reopening later should the known body part become disabling.
The unrepresented worker received a stipulated award for her right wrist and then, several years later but before the 5-year jurisdictional deadline to reopen had passed, retained counsel and petitioned to reopen based on problems with other parts of the same upper extremity.
The WCJ awarded her additional disability and the defense filed for a Writ, arguing that since the applicant knew about the other body parts (shoulder and other parts of the upper extremity) before she entered into the original stipulations regarding the right wrist, she should be precluded from reopening for "new and further" disability.
The Court not only scoffed but remanded the case back to the WCAB for attorneys fees to the applicant. The Court explained the obvious: That there was no evidence the shoulder and other parts had become disabling prior to the stipulated award, other than perhaps some first aid at the time of the original injury.
And that it was quite proper to reopen within the 5-year statutory period once the other body parts became disabling.
To read the full opinion,
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