ADJ4145263 · March 18, 2024

The issue of the attorney's fee amount is deferred pending compliance with procedural requirements for fee increase requests.

From the decision · page 13Accordingly, as our Decision After Reconsideration, we will rescind the F&O and substitute findings that defer the issues of the amount of applicant's preexisting disability, whether applicant's preexisting disability served as a basis for her SSD benefits, the amount of the attorney's fee, and whether applicant is entitled to SIBTF benefits pursuant to Todd.

The issue of entitlement to SIBTF benefits is deferred due to lack of findings on preexisting disability and related elements.

From the decision · page 13Accordingly, as our Decision After Reconsideration, we will rescind the F&O and substitute findings that defer the issues of the amount of applicant's preexisting disability, whether applicant's preexisting disability served as a basis for her SSD benefits, the amount of the attorney's fee, and whether applicant is entitled to SIBTF benefits pursuant to Todd.

The record lacks substantial medical evidence to determine the amount of preexisting disability; issue deferred for further development.

From the decision · page 13Accordingly, as our Decision After Reconsideration, we will rescind the F&O and substitute findings that defer the issues of the amount of applicant's preexisting disability, whether applicant's preexisting disability served as a basis for her SSD benefits, the amount of the attorney's fee, and whether applicant is entitled to SIBTF benefits pursuant to Todd.

The issue of whether the preexisting disability served as a basis for SSD benefits is deferred due to insufficient evidence.

From the decision · page 13Accordingly, as our Decision After Reconsideration, we will rescind the F&O and substitute findings that defer the issues of the amount of applicant's preexisting disability, whether applicant's preexisting disability served as a basis for her SSD benefits, the amount of the attorney's fee, and whether applicant is entitled to SIBTF benefits pursuant to Todd.

Favours Defendant prevailed

This fact is central to the credit issue and the determination of whether the credit against SIBTF benefits is appropriate.

From the decision · page 6The records include the payments made to applicant from Social Security Disability, but do not identify what injury or condition made her eligible for the benefits.... Petitioner defendant contends that the opinion of David S. Silver, M.D. (WCAB Exhibit DDDD, report of -1/09/2009) is not substantial evidence that the 1996 accident produced a labor disabling disability. Apportionment of disability to that accident alone would not support a finding that it produced a labor disabling disability. But Dr. Silver went further than simply apportioning. He notes that she had residual symptoms for almost a full year after the accident that were still present when she began work at Marymount.

Dr. Silver opined that the 1996 motor vehicle accident caused residual symptoms and was labor disabling, but he could not confirm fibromyalgia diagnosis at that time.

Favours Applicant prevailed

Supports the existence of a preexisting disability but does not establish the amount or permanent disability at the time of the 1996 accident, leading to deferral of the issue.

From the decision · page 3The subsequent injury caused fibromyalgia. That condition was also partially caused by the 1996 MVA according to David S. Silver, M.D., agreed medical examiner in rheumatology (beginning with WCAB Exhibit FFFF, report of 06/21/2006).

Applicant falsely asserted she did not receive SSD benefits, delaying proceedings and discovery was difficult but ultimately produced SSD payment records without basis for eligibility.

Favours Defendant prevailed

This affected the development of the record and the ability to determine the credit issue, favoring defendant's position to defer the issue.

From the decision · page 9Having determined that the record should be developed as to the amount of applicant's preexisting disability, we acknowledge the WCJ's statements that applicant has asserted that defendant may not conduct discovery as to the issue of whether it is entitled to a credit, that applicant's false assertion that she did not receive SSD benefits delayed the proceedings, and that discovery conducted to date includes records of SSD's payments but not records "identify[ing] what injury or condition made her eligible for [SSD] benefits." (Report on Applicant's Petition, p. 2; Report on Defendant's Petition, pp. 3-4.)

Dr. Silver opined that the subsequent injury caused fibromyalgia, which was partially caused by the 1996 motor vehicle accident, and that the 1996 injury was labor disabling with residual symptoms present when applicant began work at Marymount Academy.

Dr. Silver's opinion supports the existence of a preexisting disability but does not establish the amount or permanent disability at the time of the 1996 accident.

From the decision · page 3The subsequent injury caused fibromyalgia. That condition was also partially caused by the 1996 MVA according to David S. Silver, M.D., agreed medical examiner in rheumatology (beginning with WCAB Exhibit FFFF, report of 06/21/2006).

Labor Code Section 4753

Labor Code Section 4753 allows credit against SSD benefits paid for preexisting disability for which SIBTF benefits are awarded.

The credit issue was discussed in relation to the evidence of SSD payments and preexisting disability.

From the decision · page 8Pursuant to section 4753, defendant may take a credit against SSD benefits applicant received upon a showing that the benefits were paid as compensation for a preexisting disability or impairment for which applicant was awarded SIBTF benefits. (See Ybarra v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 987 [127 Cal.Rptr.2d 208].)

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

Todd v. Subsequent Injuries Benefits Trust Fund (2020) 85 Cal.Comp.Cases 576 is the governing en banc authority on SIBTF benefits entitlement and preexisting disability issues.

The issues of entitlement to SIBTF benefits and preexisting disability amount were deferred pending further development consistent with Todd.

From the decision · page 13Accordingly, as our Decision After Reconsideration, we will rescind the F&O and substitute findings that defer the issues of the amount of applicant's preexisting disability, whether applicant's preexisting disability served as a basis for her SSD benefits, the amount of the attorney's fee, and whether applicant is entitled to SIBTF benefits pursuant to Todd.

WCAB Rule 10842

WCAB Rule 10842 requires notice and procedural compliance for attorney fee increase requests.

Applicant's request for higher attorney fee was admonished for lack of compliance with Rule 10842, leading to deferral of the fee issue.

From the decision · page 10Although the record does not include a finding as to the amount of the attorney's fee, the WCJ ordered defendant to "withhold 15% of the balance of the amount owed after subtraction of the amounts paid and payable under the Award in ADJ4145263 and the credit allowed above." (Opinion on Decision, p. 5; see also F&O.) Applicant's Petition thus effectively requests an increase in her attorney's fee without including a proof of service of written notice on applicant by her attorney of the attorney's adverse interest and applicant's right to seek independent counsel as required by WCAB Rule 10842. (Cal. Code Regs. tit. 8, § 10842.) We therefore admonish applicant's attorney to promptly comply with Rule 10842 or face dismissal of the request for an increased fee. (Id.)

Applicant's false assertion that she did not receive SSD benefits delayed proceedings and discovery was tortuous but ultimately produced records showing SSD payments without identifying the basis for eligibility.

From the decision · page 9Having determined that the record should be developed as to the amount of applicant's preexisting disability, we acknowledge the WCJ's statements that applicant has asserted that defendant may not conduct discovery as to the issue of whether it is entitled to a credit, that applicant's false assertion that she did not receive SSD benefits delayed the proceedings, and that discovery conducted to date includes records of SSD's payments but not records "identify[ing] what injury or condition made her eligible for [SSD] benefits." (Report on Applicant's Petition, p. 2; Report on Defendant's Petition, pp. 3-4.)