Selden v. Workers' Compensation Appeals Board

ASHBY, Acting P. J.

I respectfully dissent. In its petition, respondent1 asked the board to “redetermine the permanent disability of the applicant as it presently exists.” The fact that respondent hoped and believed that the *885 evidence would justify a reduction does not make a reduction one issue and an increase an additional issue.

If a hearing to “redetermine the permanent disability as it presently exists” involves two separate issues (1) should there be a reduction or (2) should there be an increase, then the majority opinion is correct and petitioner was required to raise the increase issue as an additional issue pursuant to section 5804. 2 I see the issue before the workers’ compensation judge as the single issue: What is the presently existing permanent disability? Based on the evidence it could be either higher or lower than the initial level. The workers’ compensation judge found the presently existing permanent disability to be 100 percent and the evidence supports that finding.

Respondent wanted petitioner’s permanent disability redetermined “as it presently exists.” That is what respondent asked for and that is what it got. Petitioner did not raise an issue in addition to the original issue, thus petitioner is not required to comply with section 5804.

I would reverse the order of the Workers’ Compensation Appeals Board.

This case is not analogous to a redetermination of spousal support in a domestic relations case. In that situation there are two issues: (1) the husband’s ability to pay and (2) the wife’s need. A more accurate analogy is a redetermination of fair market value of property in an equalization hearing. There the issue is what is the present fair market value not two issues: (1) should the value be raised or (2) should the value be lowered.