What the panel treated as outcome-determinative, and which side it favoured.
No medical treatment or disability for right shoulder was documented before the December 15, 2016 Stipulations and Award.
Favours Applicant prevailed
This showed the right shoulder injury and disability were not known or evaluated at the time of the original award, supporting reopening.
From the decision · page 3It appears there is no dispute that on February 11, 2015, while chasing a suspect, applicant
slipped and fell, landing on his right knee and shoulder. There is also no dispute that in addition to
his right knee injury, applicant sustained an abrasion and/or contusion to his right shoulder.2 Our
review of the medical record indicates that at no time prior to the December 15, 2016 Stipulations
did applicant receive medical treatment for his right shoulder. Nor is there any evidence that
applicant had any right shoulder disability before the parties settled the right knee injury claim.
Based on the code sections cited above, there is no evidence that applicant sustained a compensable
"injury" to his right shoulder. In turn, applicant did not have "knowledge" of a right shoulder injury
The first medical treatment report for right shoulder was dated February 13, 2018, after the original award.
Favours Applicant prevailed
This new evidence was not discoverable with reasonable diligence before the award, supporting good cause to reopen.
From the decision · page 4Abelow's review of medical records
includes references to treatment reports pertaining to applicant's right shoulder. (See Joint Exh.
102, pp. 36, 38, and 39.) The first report of treatment for applicant's right shoulder was by Dr.
Michael Cohen, dated February 13, 2018. (Joint Exh. 102, p. 36.) Clearly, applicant's right
shoulder injury had not been "completely evaluated" at the time Award was issued. Defendant also
cites Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd., (1980) 109 Cal. App. 3d 941, 45
Cal.Comp.Cases 876] (Nicky Blair's) as support for its argument that there was no good cause to
reopen applicant's claim. In its decision the Second District Appellate Court stated:
AME Dr. Abelow opined 100% of right shoulder disability was due to the April 11, 2015 industrial injury.
Favours Applicant prevailed
This expert opinion provided substantial evidence causally linking the new disability to the original injury, supporting reopening.
From the decision · page 2Treatment for the right shoulder and right elbow is due to the industrial injury
of 4/11/15... It is my opinion, with reasonable medical probability, that 100%
of the permanent disability to the right shoulder is due to the industrial injury of
4/11/15. It is my opinion, with reasonable medical probability, that 0% is due to
nonindustrial causes. (Joint Exh. 102, p. 26.)