ADJ10479461 · January 27, 2025

The Appeals Board followed the holding in Bookout that apportionment is excluded when determining the 35% threshold for SIBTF benefits under Labor Code section 4751, rejecting SIBTF's argument to apply apportionment.

From the decision · page 8The court, however, found that applicant was erroneously denied SIBTF benefits under section 4751. (Bookout, supra, 62 Cal. App. 3d at p. 228.) It explained that the referee incorrectly instructed the rating specialist to apportion 34.5% for the preexisting nonindustrial heart disability (based on a standard rating of 30%) from the total subsequent injury disability of 65% (based on a standard rating of 60%), rather than utilizing the total disability for the subsequent injury "standing alone and without regard to or adjustment for the occupation or age of the employee" as required by section 4751.12 (Ibid.; § 4751, subd. (b).) It interpreted the language of this requirement as excluding apportionment. Thus, the court held that the permanent disability attributable to applicant's subsequent injury for the purpose of meeting the 35% threshold requirement under the statute was the standard rating of 60%. (Bookout, supra, 62 Cal. App. 3d at p. 228; § 4751, subd. (b).)

Applicant's subsequent injury permanent disability rating is 42% without apportionment, exceeding the 35% threshold required by Labor Code section 4751 for SIBTF benefits.

Favours Applicant prevailed

This fact establishes applicant's eligibility for SIBTF benefits under the statute's threshold requirement.

From the decision · page 3The applicant sustained a subsequent injury on January 23, 2015. Per the unrebutted opinion of AME Dr. David Pang and Panel QME Dr. Michael Kulick, as a result of that injury the applicants unadjusted whole person impairment was 15% WPI to the Left Leg, 13% WPI to the Lumbar Spine and 7% WPI to the Thoracic Spine. Applying adjustment for diminished future earning capacity the applicant and without regard to or adjustment for the occupation or age of the applicant and excluding apportionment, the permanent disability is 21% to the Left Leg, 18% WPI to the Lumbar Spine and 10% WPI to the Thoracic Spine. Combining them via CVC provides a total disability of 42%, for which applicant has established that he has sustained a subsequent compensable injury that has resulted in additional permanent disability equal to or greater than 35 percent of the total without adjustment for age or occupation. It is found that the applicant is entitled to SIF benefits.

The Appeals Board's en banc decision in Todd reaffirmed the holding in Bookout that apportionment is excluded when determining the SIBTF threshold under Labor Code section 4751.

Favours Applicant prevailed

This precedent controls the legal interpretation of the statute and supports denial of SIBTF's petition for reconsideration.

Unrebutted opinion that applicant's unadjusted whole person impairment from subsequent injury was 15% WPI to the Left Leg, 13% WPI to the Lumbar Spine, and 7% WPI to the Thoracic Spine, resulting in a combined total disability of 42% without apportionment, meeting the 35% threshold for SIBTF benefits.

Supports finding that subsequent injury disability meets the 35% threshold without apportionment.

From the decision · page 3The applicant sustained a subsequent injury on January 23, 2015. Per the unrebutted opinion of AME Dr. David Pang and Panel QME Dr. Michael Kulick, as a result of that injury the applicants unadjusted whole person impairment was 15% WPI to the Left Leg, 13% WPI to the Lumbar Spine and 7% WPI to the Thoracic Spine. Applying adjustment for diminished future earning capacity the applicant and without regard to or adjustment for the occupation or age of the applicant and excluding apportionment, the permanent disability is 21% to the Left Leg, 18% WPI to the Lumbar Spine and 10% WPI to the Thoracic Spine. Combining them via CVC provides a total disability of 42%, for which applicant has established that he has sustained a subsequent compensable injury that has resulted in additional permanent disability equal to or greater than 35 percent of the total without adjustment for age or occupation. It is found that the applicant is entitled to SIF benefits.

Panel QME opinion supporting that applicant's subsequent injury caused 15% WPI to the Left Leg, 13% WPI to the Lumbar Spine, and 7% WPI to the Thoracic Spine, combined to 42% total disability without apportionment, meeting the SIBTF threshold.

Supports finding that subsequent injury disability meets the 35% threshold without apportionment.

From the decision · page 3The applicant sustained a subsequent injury on January 23, 2015. Per the unrebutted opinion of AME Dr. David Pang and Panel QME Dr. Michael Kulick, as a result of that injury the applicants unadjusted whole person impairment was 15% WPI to the Left Leg, 13% WPI to the Lumbar Spine and 7% WPI to the Thoracic Spine. Applying adjustment for diminished future earning capacity the applicant and without regard to or adjustment for the occupation or age of the applicant and excluding apportionment, the permanent disability is 21% to the Left Leg, 18% WPI to the Lumbar Spine and 10% WPI to the Thoracic Spine. Combining them via CVC provides a total disability of 42%, for which applicant has established that he has sustained a subsequent compensable injury that has resulted in additional permanent disability equal to or greater than 35 percent of the total without adjustment for age or occupation. It is found that the applicant is entitled to SIF benefits.

AME who provided medical evidence of applicant's preexisting disabilities but did not provide substantial evidence on the exact level of disability for the anxiety condition prior to the subsequent injury.

From the decision · page 2Based upon the medical reports of AME Dr. David Pang, SIBTF Evaluators Dr. Alberto Lopez and Dr. Scott Anderson, applicant sustained the following prior injuries with the following levels of disability:

AME who provided medical evidence of applicant's preexisting disabilities including thoracic and lumbar spine conditions.

From the decision · page 2Based upon the medical reports of AME Dr. David Pang, SIBTF Evaluators Dr. Alberto Lopez and Dr. Scott Anderson, applicant sustained the following prior injuries with the following levels of disability:

California Labor Code

Labor Code section 4751

Defines the threshold requirements for SIBTF benefits and excludes apportionment when determining the 35% threshold for subsequent injury disability.

From the decision · page 2One eligibility requirement for SIBTF benefits under Labor Code § 4751 is that the permanent disability caused by a worker's industrial (or "subsequent") injury totals 35% or more before adjustment for age and occupation. Section 4751 provides as follows in that regard: "...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." (Italics added.)

California Court of Appeal

Bookout v. Workers' Comp. Appeals Bd. (1976) 62 Cal. App. 3d 214

Held that apportionment is excluded when determining the 35% threshold for SIBTF benefits under Labor Code section 4751.

From the decision · page 8The court, however, found that applicant was erroneously denied SIBTF benefits under section 4751. (Bookout, supra, 62 Cal. App. 3d at p. 228.) It explained that the referee incorrectly instructed the rating specialist to apportion 34.5% for the preexisting nonindustrial heart disability (based on a standard rating of 30%) from the total subsequent injury disability of 65% (based on a standard rating of 60%), rather than utilizing the total disability for the subsequent injury "standing alone and without regard to or adjustment for the occupation or age of the employee" as required by section 4751.12 (Ibid.; § 4751, subd. (b).) It interpreted the language of this requirement as excluding apportionment. Thus, the court held that the permanent disability attributable to applicant's subsequent injury for the purpose of meeting the 35% threshold requirement under the statute was the standard rating of 60%. (Bookout, supra, 62 Cal. App. 3d at p. 228; § 4751, subd. (b).)

California Workers' Compensation Appeals Board

Todd v. Subsequent Injuries Benefits Trust Fund (2020) 85 Cal. Comp. Cases 576 (Appeals Board en banc)

Reaffirmed the holding in Bookout that apportionment is excluded when determining the 35% threshold for SIBTF benefits under Labor Code section 4751.

Unrebutted medical opinions of AME Dr. David Pang and Panel QME Dr. Michael Kulick establishing the applicant's subsequent injury disability at 42% without apportionment.

From the decision · page 3The applicant sustained a subsequent injury on January 23, 2015. Per the unrebutted opinion of AME Dr. David Pang and Panel QME Dr. Michael Kulick, as a result of that injury the applicants unadjusted whole person impairment was 15% WPI to the Left Leg, 13% WPI to the Lumbar Spine and 7% WPI to the Thoracic Spine. Applying adjustment for diminished future earning capacity the applicant and without regard to or adjustment for the occupation or age of the applicant and excluding apportionment, the permanent disability is 21% to the Left Leg, 18% WPI to the Lumbar Spine and 10% WPI to the Thoracic Spine. Combining them via CVC provides a total disability of 42%, for which applicant has established that he has sustained a subsequent compensable injury that has resulted in additional permanent disability equal to or greater than 35 percent of the total without adjustment for age or occupation. It is found that the applicant is entitled to SIF benefits.

The Appeals Board's en banc decision in Todd reaffirming the holding in Bookout that apportionment is excluded when determining the SIBTF threshold under Labor Code section 4751.