In Linda Jenkins v. Family Practice Medical Associates and Employers Compensation Insurance Company ADJ2290172, 2011 Cal. Wrk. Comp. P.D. LEXIS 167, a panel of commissioners with the Workers' Compensation Appeals Board addressed this very question. In Jenkins, defendant sought reconsideration of the Findings & Order issued by the workers' compensation administrative law judge (WCJ), wherein the WCJ found that good cause existed to re-open applicant's previous Award of 17% permanent disability based on a change in the law. The WCJ found that the decisions in Ogilvie v. City and County of San Francisco (2009) 74 Cal. Comp. Cases 248 (Appeals Board en banc) (Ogilvie I) and Ogilvie v City and County of San Francisco (2009) 74 Cal. Comp. Cases 1127 (Appeals Board en banc) (Ogilvie II) constituted a change in the law sufficient to allow applicant the opportunity to reopen her prior determination of permanent disability and specifically litigate the issue of whether she should receive a higher award based on the methodology described in those cases.

On reconsideration in Jenkins, defendant argued that the prior determination of permanent disability was res judicata and furthermore, it argued that the Ogilvie cases did not constitute an actual change in the law or "good cause" for purposes of re-opening the prior award of permanent disability.

In responding to defendant's petition for reconsideration, the panel noted:

"The Appeals Board has power, for "good cause," to reopen a case and to rescind, alter, or amend the original decision when a petition to reopen has been filed within five years of the date of injury. (Lab. Code 5803.) This power may not be predicated upon a mere change of opinion by the commission as to the correctness of its original decision." (Merritt-Chapman & Scott Corp. v. Industrial Acc. Comm. (Smith) (1936) 6 Cal.2d 314, 316 [1 Cal.Comp.Cases 144, 146].) It is well established that a change in case law or judicial interpretation of a statute may constitute good cause to reopen a decision based on prior law. (Knowles v Workmen's Comp Appeals Bd (1970) 10 Cal.App.3d 1027 [35 Cal.Comp.Cases 411. 412] ("It is clear that a subsequent judicial interpretation of the compensation statutes contrary to a prior administrative interpretation is 'good cause' to reopen a case under section 5803 of the Labor Code..."); State Compensation Insurance Fund v. Industrial Acc. Comm. (Dean) (1946) 73 Cal.App.2nd 248, 257 [11 Cal.Comp.Cases 30] (A subsequent Supreme Court decision showing an earlier decision of the Appeals Board as erroneous, presents good cause to reopen upon a timely filed petition.)... The rationale for a change of law to be considered good cause for reopening applies equally to Appeals Board en banc decisions and appellate court opinions. As the Appeals Board functions as an appellate court within the workers' compensation system, an Appeals Board decision that includes a new statutory interpretation may constitute a change of law pursuant to section 5803. (Gonzalez v. Workers' Comp Appeals Bd. (2008) 73 Cal.Comp.Cases 284 (writ den.).) Here, the WCJ considered whether an exception exists, due to a change in the law, which allows applicant to re-litigate matters previously tried and decided. As explained below, we agree with the WCJ's conclusion that the Ogilvie decisions constitute a change in the law sufficient to support applicant's petition to reopen."

The panel concluded by observing:

"After the statutory time had lapsed for applicant to file a petition for reconsideration, the en banc decisions in Ogilvie I (February 3, 2009) and Ogilvie II (September 3, 2009) were issued. These decisions did more than clarify and confirm that the 2005 Schedule is rebuttable; they presented a change in the law by articulating the factors to consider in rebutting the Schedule, and set forth the methodology to do so. Therefore, we are persuaded that the WCJ properly determined that Ogilvie constituted a change of law sufficient to justify applicant's petition to reopen."

Jenkins makes it very clear that the en banc decisions in Ogilvie I and Ogilvie II constituted a change in the law sufficient to support a petition to reopen. There is little reason why this same analysis would not apply to the methodologies enunciated by Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School Dist.(2009) 74 Cal. Comp. Cases 1084 (Almaraz II) and Milpitas Unified School Dist. v. WCAB (Guzman) 187 Cal.App.4th 808 [75 Cal. Comp. Cases 837]. This could have significant implications for the workers' compensation process. In virtually any claim where the permanent disability determination was made based on a "strict" application of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), if the applicant is still within five years of his or her injury date, the applicant could use these cases for establishing "good cause" and seek to have his or her permanent disability re-calculated using one or all of these approaches.

Reminder: Practitioners should check the subsequent history of a panel decision before citing to it.

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