In an apparent case of first impression, a Board panel granted an applicant’s petition to modify the terms in a previously approved Compromise and Release (C&R), to allow a change in the administration...
CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Over the last few years, there has been quite an increase in the number of workers’ compensation cases dealing with the Subsequent Injuries Benefit Trust Fund (SIBTF) under Labor Code § 4751. The primary issue is whether or not an injured worker qualifies for additional compensation from the SIBTF, but there are many other issues and strategies that practitioners need to become familiar with before handling an SIBTF case under Labor Code § 4751.
I. Legislative Intent of Labor Code § 4751
The legislative intent behind Labor Code § 4751 was to allow people with pre-existing disabilities to have an opportunity to obtain gainful employment without the employer worrying about being economically responsible for a pre-existing condition should that worker incur a work-related injury that causes the pre-existing disability to worsen. Yet, there must also be a mechanism in place to assist the employee should his or her disability increase.
The Workers’ Compensation Judge (WCJ) in the case of Khamtrashyan v. SIBTF, 2011 Cal. Wrk. Comp. P.D. LEXIS 539 explained, “The SIBTF is a state fund that, under limited statutorily specified conditions, provides benefits to employees with preexisting permanent disability who sustain subsequent industrial injuries resulting in additional permanent disability.(Lab. Code, § 4751.) The purpose of the SIF is both to encourage disabled persons to seek employment and to encourage employers to hire them. (Ferguson v. Industrial Acc. Com. (1958) 50 Cal.2d 469, 474–475 [326 P.2d 145] [23 Cal.Comp.Cases 108]); Subsequent Injuries Fund v. Industrial Acc. Com. (Patterson) (1952) 39 Cal.2d 83, 86 [244 P.2d 889] [17 Cal.Comp. Cases 142].)” (Note: The entity previously named SIF, is now known as the SIBTF.)
II. Contents of Labor Code § 4751
The statute itself is complex and difficult to understand. This creates confusion for litigators when trying to decide how to prepare a SIBTF case for trial. The cases described below will hopefully provide guidance for the practitioner with some guidance by illustrating the issues presented by the statute.
Labor Code § 4751 provides:
If an employee who is permanently partially disabled receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous disability or impairment is a permanent disability equal to 70 percent or more of total, he shall be paid in addition to the compensation due under this code for the permanent partial disability caused by the last injury compensation for the remainder of the combined permanent disability existing after the last injury as provided in this article; provided, that either (a) the previous disability or impairment affected a hand, an arm, a foot, a leg, or an eye, and the permanent disability resulting from the subsequent injury affects the opposite and corresponding member, and such latter permanent disability, when considered alone and without regard to, or adjustment for, the occupation or age of the employee, is equal to 5 percent or more of total, or (b) the permanent disability resulting from the subsequent injury, when considered alone and without regard to or adjustment for the occupation or the age of the employee, is equal to 35 percent or more of total.
III. What Exactly Is the Labor Code § 4751 Threshold?
Yes, you read that correctly. The state legislature, in their infinite wisdom, strung together 217 words in one, long, run-on sentence, hoping practitioners might make some sense out of it.
Perhaps parsing the sentence out a bit might help clarify the meaning behind this 217 word sentence.
1. The employee must have a pre-existing permanent partial disability which may be industrial or non-industrial in origin. (See Khamtrashyan v. SIBTF, 2011 Cal. Wrk. Comp. P.D. LEXIS 539.)
2. The employee must have a subsequent industrial disability.
3. The two disabilities combined must be greater than what the employee’s disability would have been if the employee suffered only the subsequent and not the pre-existing disability.
4. The two disabilities combined must be “equal to 70 percent [PD] or more”.
IV. Meeting the Labor Code § 4751 Threshold for SIBTF Benefits
Consider the following set of facts:
> Ms. Eidman, working as a grocery clerk, sustained industrial back injuries in 1991 and 1993.
> Dr. Weaver evaluated Ms. Eidman and determined that she was precluded from “very heavy work” equivalent to 15% PD per the 1997 PDRS, as a result of her industrial back injuries of 1991 and 1993. He also declared her to be a “qualified injured worker.” These cases were settled by a Compromise and Release.
> Ms. Eidman changed occupations and became a paralegal.
> On 11/20/2002, she suffered an industrial injury to her spine and psych and is now considered 100%PD.
In the Noteworthy Panel decision (NPD) of Eidman v Law Offices of Thomas Plumb, SCIF, 2012 Cal. Wrk. Comp. P.D. LEXIS 407, the WCAB affirmed the WCJ’s award of SIBTF benefits for Ms. Eidman for the following reasons:
Ms. Eidman established that she had a pre-existing permanent back disability and was determined by the evaluating physician to be a “qualified injured worker” and precluded from “very heavy work,” a 15% standard.
Ms. Eidman had a subsequent disability to her spine and psyche.
The two disabilities combined were greater than Ms. Eidman’s disability would have been if she had suffered only her subsequent disability.
Finally, the two disabilities combined result in Ms. Eidman now being considered 100% PD, which is “equal to 70 percent [PD] or more”.
V. Pre-Existing Disability Must Be Labor Disabling
In addition to merely having a “pre-existing disability,” case law has established that the “pre-existing disability” must be “labor disabling.” See the case of Ferguson v. IAC, (1958) 50 Cal.2d 469, 23 Cal. Comp. Cases 108, in which the California Supreme Court held:
To summarize, we hold that to qualify for resort to the Subsequent Injuries Fund an employee must show that prior to the occurrence of the subsequent industrial injury he had attained the factual status of the "permanently partially disabled" and that such previously incepted disability was labor disabling, but that previous knowledge thereof by the employer is not inherently as a matter of law required as a condition to an award to the employee of payments from the Subsequent Injuries Fund. (Emphasis added.)
Consider this set of facts regarding the mandate that the “pre-existing disability” be “labor disabling:”
> Mr. Becerra had a pre-existing injury in the form of a partially amputated index finger.
> Mr. Becerra had a subsequent industrial disability to his back working as a truck driver which was equivalent to 97% PD.
> Mr. Becerra argued that the two disabilities combined was greater than if he had only suffered the subsequent back injury, and both the back injury AND the pre-existing finger amputation.
> SIBTF used Vocational Rehabilitation (VR) expert evidence to establish that Mr. Becerra was 100% PD from the back injury alone, and that the pre-existing injury did not contribute to his 100% PD.
In the case of Becerra v. WCAB; SIBTF (2011) 76 Cal. Comp. Cases 668, 2011 Cal. Wrk. Comp. LEXIS 86 (writ denied), the court held that there was substantial medical and VR expert evidence to establish that the industrial injury alone exceeded 100% PD, and that Mr. Becerra’s work was not hampered at all by his pre-existing injury to his finger. Therefore, he did NOT meet the threshold standard required for a distribution of SIBTF benefits.
VI. Combing the Pre-Existing and Subsequent Industrial Disabilities
In recent years, Judges have struggled with the correct interpretation of Labor Code § 4751 and specifically, how to calculate the percentage of applicant’s subsequent Whole Person Impairment (WPI) for the purpose of meeting the Labor Code § 4751 SITFB threshold.
Consider these facts:
> Officer Geletko was a CHP officer for 30 years until he retired.
> Officer Geletko had pre-existing non-industrial injury equivalent to 60% PD.
> On 6/25/2014, Officer Geletko was awarded 66% PD for his cumulative trauma ending 6/5/2013 to his heart, digestive system, excretory system, head and back.
> Officer Geletko’s industrial injury was comprised of the following:
> 8% WPI lumbar spine
> 8% WPI thoracic spine
> 3% WPI lumbar pain
> 7% WPI cardiovascular disease
> 5% WPI upper gastric disease
> 5% WPI tension headaches (50% of which = non-industrial)
> The WCJ multiplied the above WPIs by 1.4, and then added them together for a total of 47% PD (instead of using the combined values chart) to determine whether applicant met the threshold for SIBTF benefits.
Did the WCJ calculate the 47% PD of the subsequent industrial injury correctly?
Does Officer Geletko qualify for SIBTF benefits?
In the Noteworthy Panel decision (NPD) of Geletko v. CHP; SIBTF, 2016 Cal. Wrk. Comp. P.D. LEXIS 201, 81 Cal. Comp. Cases 661, the WCAB held that the WCJ correctly calculated the 47% PD, by adding the impairments together rather than using the combined values chart.
Also, although Labor Code § 4751 excludes adjustment of the WPI by age and occupation (two of the four factors of Labor Code § 4660.1 for calculating permanent disability); however, it does not exclude the fourth factor of Labor Code § 4660.1, the 1.4 adjustment factor. The court explained, “Under the doctrine of expressio unius est exclusio alterius, absent a discernable and contrary legislative intent the courts ordinarily interpret the expression of one thing in a statute to imply the exclusion of others.” Therefore, the WCJ correctly included the 1.4 adjustment factor and correctly multiplied each WPI by 1.4, per Labor Code § 4660.1.
Next, the two disabilities combined is greater than what the Officer Geletko’s disability would have been, if he had suffered only the subsequent industrial injury and not the pre-existing non-industrial disability.
In addition, the two disabilities combined would be 107%, which is “equal to 70 percent [PD] or more”. Therefore, Officer Geletko clearly qualifies for SIBTF benefits.
Labor Code § 4751 describes the process for meeting the threshold for obtaining SIBTF benefits. Although at first glance it appears to be one long incomprehensible sentence of 217 words, the principles are rather straightforward once applied to the facts of real life situations. Counsel handling one of these cases should carefully study previously decided SIBTF cases for hints on how to maximize success for their client.
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