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Should the Subsequent Non-Compensable Aspect of an Injury Be Considered in Qualifying for SIBTF Benefits?
The Subsequent Injuries Benefits Trust Fund (SIBTF) was created in 1945 and was intended to help compensate already disabled employees who suffered a subsequent industrial injury. In order to qualify for SIBTF benefits, the employee must meet certain requirements. Although there are several requirements, one of the most difficult requirements to meet is establishing that the subsequent disability produces a 35% disability or a 5% disability to an “opposite and corresponding member”.
Since 1945, however, there have been many changes to the Workers’ Compensation system. Many of these changes have resulted in a restriction of what an injured employee can recover as a consequence of the subsequent industrial injury. For example, beginning in 1993, the thresholds for establishing an industrial psychiatric injury have become increasingly difficult. As things currently stand, an employee must establish that a psychiatric injury was predominantly caused by “actual events” of employment, or the psychiatric injury is deemed “non-compensable” (See Labor Code Section 3208.3).
Likewise, in 2004, then Governor Arnold Schwarzenegger passed Senate Bill 899 into law which significantly expanded on what constitutes legal apportionment. The law was changed so that apportionment to asymptomatic pathology, age and even genetics is now deemed permissible (See Labor Code Section 4663).
As the benefits associated with the industrial injury have been reduced, employees have attempted to recover additional benefits through the SIBTF. Recently, a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) addressed Tejada v. SIBTF, 2019 Cal. Wrk. Comp. P.D. LEXIS 174. Tejada involved the question of whether the subsequent 35% disability has to arise solely from a “compensable” subsequent injury. Specifically, the parties in Tejada stipulated that the employee’s overall permanent disability was 54%. However, only 24% of that 54% was the result of a compensable orthopedic injury. The remaining disability was the consequence of a non-compensable psychiatric disability.
The panel of commissioners found that the subsequent disability had to be solely the result of a compensable disability. However, the panel did not address why statutes like Labor Code Section 3208.3 were passed in the first place. Many, if not all, of the statutes restricting an employee’s entitlement to Workers’ Compensation benefits were passed because of perceived abuses relating to non-SIBTF benefits. Indeed, Labor Code Section 3208.3 was specifically intended to prevent employees from filing retaliatory claims of a psychiatric injury. Why would those same limitations be applied to an employee who unequivocally suffers from a more serious subsequent injury than the Workers’ Compensation system is willing to recognize?
In conclusion, Tejada raises some very interesting questions. There are cases that specifically state that the injured employee is not bound by the limitations contained in Labor Code Section 3208.3 when attempting to establish an industrial psychiatric injury for purposes of qualifying for a Public Employees Retirement System (PERS) Disability Retirement (See Pearl v. WCAB, 26 Cal. 4th 189, 66 Cal. Comp. Cases 823). It will be interesting to see if the issues raised by Tejada also end up at the Court of Appeal.
Practitioners should check the subsequent history of any cases before citing to them.
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