Benavides v. Workers' Compensation Appeals Board & Specialty Risk Services

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 The Workers’ Compensation Appeals Board (appeals board), on a two-to-one vote, rescinded the disability rating.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.