The opinion
7/18/14 Opn after rehearing
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LEOPOLDO BENAVIDES, B251487
Petitioner, (W.C.A.B. No. ADJ4322447)
v.
WORKERS’ COMPENSATION APPEALS
BOARD et al.,
Respondents.
PROCEEDING to review a decision of the Workers’ Compensation Appeals
Board. Annulled and remanded with directions.
Law Offices of Daniel Anaya and Daniel Anaya for Petitioner.
No appearance by Respondent workers’ Compensation Appeals Board.
Graves & Bourassa and James R. Beckman for Respondent Specialty Risk
Services.
_____________________
INTRODUCTION
Leopoldo Benavides and his employer’s workers’ compensation insurance carrier
agreed in a stipulated award that Benavides was injured in the course and scope of his
employment leaving him 51 percent permanently disabled.
Following a timely petition to reopen, the workers’ compensation judge (WCJ)
found Benavides to be 72 percent permanently disabled, based on a report prepared by
the agreed medical evaluator (AME) subsequent to entry of the stipulated award. The
Workers’ Compensation Appeals Board (appeals board), on a two-to-one vote, rescinded
the disability rating. The majority concluded there was not good cause to reopen the case
because the AME’s new report relied on an abnormal electromyography (EMG) test that
was performed before the stipulated judgment was entered, but which the AME had
failed to review.
We granted Benavides’s petition for a writ of review. We conclude there was
good cause to reopen the case and therefore annul the decision of the appeals board and
remand with directions to reinstate the WCJ’s award of a 72 percent disability rating.
FACTS AND PROCEDURAL BACKGROUND
Benavides worked as a roofer. On February 7, 2005, while working on an angled
roof, he lost his footing and fell a distance of about 12 feet. The fall fractured his right
ankle and injured his back. Paramedics were summoned, and Benavides was transported
to the hospital by ambulance.
On April 12, 2007, the AME, orthopedic surgeon Roger S. Sohn, M.D., examined
Benavides and issued a report. Dr. Sohn found Benavides’s lumbar spine had a
compression fracture and his right ankle had residual weakness. Based on the spine
injury, Dr. Sohn applied a category IV diagnosis-related estimate (DRE), which
translated to a 21 percent whole person impairment for Benavides’s spine.
2
On May 9, 2008, Benavides was seen for an EMG evaluation of the bilateral lower
extremities. At the time of the examination, Benavides had complained of radiating back
and hip pain, weakness in the arms and legs, and difficulty walking due to pain. The
EMG produced an “Abnormal Study,” and findings “consistent with chronic left L5
radiculopathy”—nerve pain and weakness in the spine. The EMG found no evidence of
“active lumbar radiculopathy . . . in the bilateral lower extremities” or “entrapment
neuropathy . . . at any level in bilateral extremities.”
On July 23, 2008, a stipulated award was entered reflecting the parties’ agreement
that Benavides’s injury had left him 51 percent permanently disabled.
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. On April 27, 2011, the WCJ granted Benavides’s petition.
Dr. Sohn evaluated Benavides again on August 20, 2010. In his report, Dr. Sohn
took note of the May 9, 2008 EMG findings, but he did not comment on the evaluation or
attach any significance to its findings. The report stated Benavides had sustained another
work-related injury on May 16, 2008, when he fell off a ladder and broke his right femur.
Dr. Sohn concluded Benavides’ condition was unchanged “with respect to his prior
[February 7, 2005] injury.”
Dr. Sohn examined Benavides again on December 28, 2010, and issued a new
report increasing Benavides’s whole person impairment rating to 30 percent 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.
The case proceeded to trial on July 9, 2012. The WCJ issued a decision finding
that Benavides had not sustained a new and further disability following that award.
3
Benavides filed a petition for reconsideration and the WCJ vacated his initial
finding and decision. 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.
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
Code1 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.
The dissent focused on the fact that Dr. Sohn had written his pre-award report of
April 12, 2007 without requesting an EMG. Addressing the majority’s good cause
determination, the dissent explained that, when the EMG was performed, “apparently at
the request of one of [Benavides’s] treating physicians,” “[Dr. Sohn] had already
completed his reporting, so the parties had no reason to believe that he needed any
additional information.” Setting aside the parties’ understandable conduct, the dissent
observed that Dr. Sohn “should have requested an EMG and waited for the results before
expressing an opinion on spinal impairment.” Because Dr. Sohn failed to do so,
however, “[t]he WCJ approved the parties’ settlement, unaware of the fact that an EMG
was in existence that demonstrated that [Benavides’s] spinal condition was significantly
worse than previously believed.” The dissent concluded there was good cause to reopen
the case, because, “[a]s a result of this mistake, the parties’ settlement agreement was
inequitable.”
1
All further statutory references are to the Labor Code.
4
DISCUSSION
Section 5803 accords the appeals board continuing jurisdiction to rescind or revise
its awards, “upon good cause shown.”2 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, 241-242 (LeBoeuf).) 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 (Huston).)
The instant case was settled by a stipulated award, the “distinguishing feature” of
which is “the parties retained the right to reopen the case on a showing of a change of
disability.” (Draper v. Workers’ Comp. Appeals Bd. (1983) 147 Cal.App.3d 502, 507.)
“If the stipulation does not adequately reflect the disability of the applicant, it should not
be accepted by the workers’ compensation judge as the basis for his or her award.”
(Ibid.)
2
Section 5803 provides: “The appeals board has continuing jurisdiction over all its
orders, decisions, and awards made and entered under the provisions of this division . . . .
At any time, upon notice and after an opportunity to be heard is given to the parties in
interest, the appeals board may rescind, alter, or amend any order, decision, or award,
good cause appearing therefor. [¶] This power includes the right to . . . diminish,
increase, or terminate . . . any compensation awarded, upon the grounds that the disability
of the person in whose favor the award was made has either recurred, increased,
diminished, or terminated.”
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Here, as the dissenting commissioner observed, 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. (Huston,
supra, 95 Cal.App.3d at pp. 865-866.) Indeed, when Benavides brought his petition to
reopen, the evidence clearly established that the stipulated award was inequitable.
(LeBoeuf, supra, 34 Cal.3d at p. 242.)
Moreover, despite Dr. Sohn’s failure to request an EMG before issuing his initial
report, by the time of Benavides’s petition to reopen, Dr. Sohn had reviewed the EMG
and acknowledged that his pre-award report relied on incomplete information. As the
dissenting commissioner noted, “an expert’s opinion which does not rest upon relevant
facts . . . cannot constitute substantial evidence . . . .” (Zemke v. Workmen’s Comp. App.
Bd. (1968) 68 Cal.2d 794, 798, italics added.) Any decision by the appeals board or a
WCJ “must be supported by substantial evidence in the light of the entire record
[citations].” (Garza v. Workmen’s Comp. App. Bd. (1970) 3 Cal.3d 312, 317.) In view of
Dr. Sohn’s initial failure to request an EMG, and his later opinion regarding the EMG’s
impact on Benavides’s permanent disability rating, we conclude substantial evidence
does not support the appeals board’s decision to deny the petition to reopen. (See Sully-
Miller Contracting Co. v. Workers’ Comp. Appeals Bd. (1980) 107 Cal.App.3d 916, 924
[where the appeals board’s denial of a request to reopen is not based on substantial
evidence, it must be annulled].)
6
DISPOSITION
The decision of the Workers’ Compensation Appeals Board is annulled and the
case is remanded with directions to reinstate the award of the workers’ compensation
judge entered on April 19, 2013.
CERTIFIED FOR PUBLICATION
KITCHING, J.
We concur:
KLEIN, P. J.
ALDRICH, J.
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