Legal Question in Workers Comp in California

condition 11. It is agreed by all parties hereto that the filing of this document

is the filing of an application on behalf of the employee (that was me), and that

the WCAB (workers' compensation appeals board) may in its discretion set the matter

for hearing as a regular application, reserving to the parties the right to put in

issue any of the facts admitted herein, and that if hearing is held with this document

used as an application the defendants shall have available to them all defenses that

were available as of the date of filing of this document, and that the WCAB may

thereafter either approve said Compromise Agreement and Release or disapprove the

same and issue Findings and Award after hearing has been held and the matter

regularly submitted for decision.

MY QUESTION: will this condition that is part of C&R allow me to use my case documents as an application to reopen my case for award adjustment if I can prove past allegation that were ignored and now provable through discovery with new MRI images overlayed over old images, for starters. I have a whole stack of now proven wrong statements that adversely affected my settlement.

Asked on 1/02/12, 9:25 pm

1 Answer from Attorneys

Nancy Wallace Nancy Wallace Atty at Law

NO, ONLY because there is no such power of a WCAB Judge as an "...award adjustment." A Compromise & Release Agreement is a contract; once is it deemed fair by the WCAB Judge, and an Order Approving the C&R is issued, the contract is set.

The only way out of this contract is to (1) Petition to Set Aside C&R for Mistake or Fraud, and (2) Pay back 100% of the C&R money.

If you wanted to leave the option open to prove a new & further disability later, the proper settlement document was the Stipulations With REquest For Award. You did not choose that option. You chose the one with extra cash; you didn't appreciate the extra cash was to cash out your rights to prove a new&further;disability later.

This condition in your C&R is for the judge who refuses to approve the C&R because it appears unreasonable to the applicant, this lets the C&R serve as the application to get a hearing going to get the claim resolved at a trial (so they don't have to withdraw and C&R then file an Application with the same details and issues).

This condition IS NOT an open door to re-litigate your claim when you find a new issue or evidence that should have been obtained prior to signing the settlement documents.

Sorry to be the bearer of bad news.

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Answered on 1/03/12, 8:11 am

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