ADJ10592929 — California WCAB decision

What the panel ordered

August 27, 2024 Findings of Fact affirmed except amended to defer eligibility and attorney fees issues; matter returned to trial level for further development.

Petition for Reconsideration filed by applicant was granted to further study legal and factual issues; WCJ had found applicant not eligible for SIBTF benefits under Labor Code section 4751; WCJ Report recommended denial of Petition; WCAB returned matter to trial level for further record development.

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold November 4, 2024.

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Other disputed issueRemandedleft knee · back · right ankle · bilateral upper extremities

The WCAB found that the WCJ's original findings on eligibility were incomplete and required further medical opinion and record development to determine if the applicant met the 5% or 35% thresholds and the 70% combined disability threshold under section 4751.

From the decision · page 742.5(43) + 9 + 8 + 8 + 4 + 2 = 74% (without pain add-on) or 42.5(43) + 13 + 9 + 8 + 4 + 2 = 79% (with pain add-on) Either scenario, with the pain add-on or without the pain add-on, meets the 70% threshold. We do note that applicant would not meet the 70% threshold if it is proven, as the WCJ concluded, that the 4% low back, 2% left leg, and 8% right upper extremity were not labor disabling. ((Ferguson, supra, p. 477; Escobedo v. Marshall, 70 Cal.Comp.Cases 604, 619 (Appeals Board en banc) [the previous disability or impairment must be labor disabling].) Accordingly, based on our analysis of the various SIBTF eligibility thresholds as discussed above, we return this matter to the trial level to further develop the record. For the foregoing reasons, IT IS FURTHER ORDERED, as the Decision After Reconsideration of the Workers' Compensation Appeals Board, that the August 27, 2024 Findings of Fact is AFFIRMED EXCEPT that it is AMENDED as follows:

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant sustained a subsequent industrial injury to the left knee on April 23, 2014, and a later injury to the back on November 17, 2014.

Favours Applicant prevailed

These injuries are central to determining eligibility under section 4751 for SIBTF benefits.

From the decision · page 2Applicant sustained a subsequent industrial injury to the left knee while employed as a vehicle mechanic foreman on April 23, 2014. After trial it was determined that Applicant does not meet the elements pursuant to Labor Code section 4751and is therefore not eligible for SIBTF benefits. It was also determined that Applicant does not meet the burden of proof to use the addition method of combining disabilities. It was found that Applicant sustained preexisting labor disabling disability to the right ankle of 9% and to the bilateral upper extremities of 42.5%. It was found that Applicant's claim against SIBTF is not barred by the Statute of Limitations. No attorney fees were awarded as no SIBTF benefits were found. (Report, p. 1.)

Dr. Tapper opined 3% WPI to left knee and 6% WPI to back, with a 3% chronic pain add-on, but did not clarify pain add-on attribution or provide work restrictions.

Favours Applicant prevailed

The lack of clarity on pain add-on attribution affects whether the subsequent injury meets the 5% threshold for eligibility.

From the decision · page 3Dr. Tapper, Qualified Medical Evaluator, opined that applicant sustained a 3% whole person impairment (WPI) to his left knee on April 23, 2014 and a 6% WPI to his back on November 17, 2014. (Joint Exhibit BB, report of Edward M. Tapper, M.D., dated September 6, 2016, pp. 4- 5.) He stated,

WCJ erroneously used Combined Values Chart instead of adding non-overlapping disabilities for the 70% threshold; corrected combined disability is 74% to 79%.

Favours Applicant prevailed

This correction supports eligibility but requires further record development on labor disabling status of some disabilities.

From the decision · page 6Second, the WCJ erroneously combined the preexisting and subsequent disabilities using the Combined Values Chart (CVC). In Todd v. Subsequent Injuries Benefits Trust Fund (2020) 85 Cal.Comp.Cases 576 [2020 Cal. Wrk. Comp. LEXIS 35] (Appeals Board en banc), we held that prior and subsequent permanent disabilities shall be added to the extent they do not overlap in order to determine the "combined permanent disability" specified in section 4751. Thus, the "combined permanent disability" for purposes of the 70% threshold is as follows:

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

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

Clarifies that prior and subsequent permanent disabilities must be added to the extent they do not overlap to determine combined permanent disability for section 4751 eligibility.

From the decision · page 6Second, the WCJ erroneously combined the preexisting and subsequent disabilities using the Combined Values Chart (CVC). In Todd v. Subsequent Injuries Benefits Trust Fund (2020) 85 Cal.Comp.Cases 576 [2020 Cal. Wrk. Comp. LEXIS 35] (Appeals Board en banc), we held that prior and subsequent permanent disabilities shall be added to the extent they do not overlap in order to determine the "combined permanent disability" specified in section 4751. Thus, the "combined permanent disability" for purposes of the 70% threshold is as follows:

Labor Code section 4751

Defines eligibility criteria for SIBTF benefits based on combined permanent disability thresholds and specific injury conditions.

From the decision · page 2If 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.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Dr. Tapper's incomplete explanation of apportionment and pain add-on attribution

From the decision · page 4On September 6, 2016, Applicant saw Edward Tapper, M.D. for a QME evaluation. In his report, Dr. Tapper indicates Applicant was working as a mechanic/foreman on April 23, 2014, when he jumped down from a truck, landed on his tailbone, and injured his left knee. Dr. Tapper found 3% WPI for the left knee considering patellofemoral pain and partial medial meniscectomy due to the injury on April 23, 2014. In his report under work restrictions, Dr. Tapper states simply that Applicant is not able to work and has retired. Dr. Tapper also finds 12% WPI for the back considering DRE Category II and apportioned 50% to the injury on November 17, 2014, and 50% to preexisting problems. Dr. Tapper finds an additional 3% for chronic pain. (Joint Exhibit BB) Dr. Tapper fails to provide any explanation regarding apportionment, fails to provide work restrictions, and fails to assign the 3% pain add-on to a specific body part. It is unclear how much if any of the 3% pain add-on is meant to be attributed to the left knee. (Report, p. 3; Opinion on Decision, p. 4; emphasis added.)

expert methodologyfavours Applicant prevailed

WCJ's erroneous use of Combined Values Chart instead of adding non-overlapping disabilities for 70% threshold

From the decision · page 6Second, the WCJ erroneously combined the preexisting and subsequent disabilities using the Combined Values Chart (CVC). In Todd v. Subsequent Injuries Benefits Trust Fund (2020) 85 Cal.Comp.Cases 576 [2020 Cal. Wrk. Comp. LEXIS 35] (Appeals Board en banc), we held that prior and subsequent permanent disabilities shall be added to the extent they do not overlap in order to determine the "combined permanent disability" specified in section 4751. Thus, the "combined permanent disability" for purposes of the 70% threshold is as follows:

ADJ10592929 · June 30, 2026

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

What proof carried it

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