Nicky Blair's Restaurant v. Workers' Compensation Appeals Board

Petitioners (the employer and its insurer) seek review of a decision of the respondent Workers’ Compensation Appeals Board (Board) permitting respondent injured worker to reopen his workers’ compensation award. Specifically, petitioners contend the Board erred in (1) increasing the permanent disability award and (2) awarding further medical treatment. There is no merit to the latter contention. The first contention, however, raises the serious question of the proper legal standards for reopening a prior decision of the Board under Labor Code sections 5410, 5803, 5804 and 5805.

Proceedings Before Board

Respondent Juan J. Macias (hereinafter also “applicant”) while employed on October 14, 1972, as a waiter by petitioner Nicky Blair’s Restaurant, whose compensation insurance carrier is petitioner The Travelers Insurance Company, sustained injury arising out of and in the course of his employment to his back. A herniated disc at the L4-L5 level was diagnosed. In October 1973 Macias underwent a lumbar laminectomy.

After a hearing on April 24, 1975, Workers’ Compensation Judge Lippert awarded Macias back disability of 21 1/2 percent ($4,816.50) based upon finding “back…