ADJ9489540 · June 28, 2024

The Board followed Bookout's interpretation that the 35 percent threshold for SIBTF benefits is met by the permanent disability rating from the subsequent injury alone without apportionment, affirming the applicant's eligibility.

From the decision · page 1Defendant seeks reconsideration of the Amended Findings and Award (F&A) issued on April 5, 2024, wherein the workers' compensation administrative law judge (WCJ) found as relevant that (1) while employed as a deputy director of social services during the period January 1, 2007 through February 16, 2013, applicant sustained injury arising out of and in the course of employment in the form of hypertension, cognitive impairment, and neurologic deficit; (2) no attorney fees have been paid in connection with the application for SIBTF benefits; (3) applicant's permanent disability start date is October 25, 2013; (4) applicant sustained an injury in the form of hypertension in the amount of 42 percent without adjustment for age, occupation, or apportionment; (5) applicant sustained an injury in the form of visual loss in the amount of 28 percent without adjustm

The Board found no evidence that the applicant knew or should have known about the likelihood of entitlement to SIBTF benefits before the five-year limitation period expired, thus the claim was timely filed within a reasonable time after knowledge.

From the decision · page 9We should, in the absence of statutory direction and to avoid an injustice, prevent the barring of an applicant's claim against the Fund before it arises. Therefore, we hold that where, prior to the expiration of five years from the date of injury, an applicant does not know and could not reasonably be deemed to know that there will be substantial likelihood he will become entitled to subsequent injuries benefits, his application against the Fund will not be barred--even if he has applied for normal benefits against his employer--if he files a proceeding against the Fund within a reasonable time after he learns from the board's findings on the issue of permanent disability that the Fund has probable liability. (Talcott, supra, 2 Cal. 3d at p. 65 [Emphasis added].)

Applicant's permanent disability from subsequent injury alone met the 35 percent threshold without apportionment.

Favours Applicant prevailed

This fact established eligibility for SIBTF benefits under Labor Code section 4751(b).

From the decision · page 1Defendant seeks reconsideration of the Amended Findings and Award (F&A) issued on April 5, 2024, wherein the workers' compensation administrative law judge (WCJ) found as relevant that (1) while employed as a deputy director of social services during the period January 1, 2007 through February 16, 2013, applicant sustained injury arising out of and in the course of employment in the form of hypertension, cognitive impairment, and neurologic deficit; (2) no attorney fees have been paid in connection with the application for SIBTF benefits; (3) applicant's permanent disability start date is October 25, 2013; (4) applicant sustained an injury in the form of hypertension in the amount of 42 percent without adjustment for age, occupation, or apportionment; (5) applicant sustained an injury in the form of visual loss in the amount of 28 percent without adjustm

Applicant did not know and could not reasonably be deemed to know of entitlement to SIBTF benefits before the five-year limitation period expired.

Favours Applicant prevailed

This fact supported the finding that the claim was timely filed within a reasonable time after knowledge.

From the decision · page 9We should, in the absence of statutory direction and to avoid an injustice, prevent the barring of an applicant's claim against the Fund before it arises. Therefore, we hold that where, prior to the expiration of five years from the date of injury, an applicant does not know and could not reasonably be deemed to know that there will be substantial likelihood he will become entitled to subsequent injuries benefits, his application against the Fund will not be barred--even if he has applied for normal benefits against his employer--if he files a proceeding against the Fund within a reasonable time after he learns from the board's findings on the issue of permanent disability that the Fund has probable liability. (Talcott, supra, 2 Cal. 3d at p. 65 [Emphasis added].)

Applicant's February 13, 2013 stroke was a right posterior temporal infarction with left upper quadrant anopsia, of hypertensive nature, with work stress contributing about 33% to the impairment.

Dr. Espy opined the stroke was hypertensive and partially caused by work stress, contributing to the applicant's impairment.

From the decision · page 3Dr. Espy, the neurologist who evaluated applicant at Dr. Hyman's request, issued his report on April 16, 2015. (Applicant's Exh. 5.) Dr. Espy opined that applicant's February 13, 2013 stroke was a right posterior temporal infarction with a left upper quadrant anopsia. (Id., at p. 3.) Dr. Espy then said:

Applicant's impairment was 35% industrially caused; 35% of hypertension was work-related, with the rest due to non-industrial factors like family history and obesity; stroke was a natural progression of hypertension and apportionable similarly.

Dr. Hyman opined 35% of hypertension was work-related and the stroke impairment was apportionable accordingly.

From the decision · page 4Dr. Espy added that, absent the stroke, the impairment he found would not exist. (Applicant's Exh. 6, at 21:10-21:13.)... Dr. Hyman opined that applicant's impairment was 35% industrially-caused because 35% of his hypertension was work-related, while the other 65% of his hypertension was due to non-industrial factors, particularly his family history of hypertension and his own obesity. (Id., at 7:7-7:8; 22:6-23:8.)[fn] That is, the stroke was a natural progression of the hypertension and is apportionable in the same fashion as the hypertension. (Id., at 7:9-7:11; see also 25:1- 25: 16.) It was applicant's hypertension that caused his stroke, not his obesity or family history, which are only risk factors.

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

Permanent disability from subsequent injury for SIBTF eligibility is calculated without apportionment as per Labor Code section 4751(b).

The Board applied Bookout's interpretation to affirm applicant's eligibility for SIBTF benefits.

From the decision · page 6Defendant contends that the WCJ erroneously relied on the holding in Bookout v. Workmen's Comp. Appeals Bd. (1976) 62 Cal.App.3d 214 [41 Cal.Comp.Cases 595] to find that applicant meets the 35 percent permanent disability threshold from the subsequent industrial injury alone as required by section 4751(b).

Talcott v. SIBTF (2 Cal. 3d 63)

The Board applied Talcott to find applicant's claim timely as he did not know of entitlement before the five-year limitation period expired.

From the decision · page 9We should, in the absence of statutory direction and to avoid an injustice, prevent the barring of an applicant's claim against the Fund before it arises. Therefore, we hold that where, prior to the expiration of five years from the date of injury, an applicant does not know and could not reasonably be deemed to know that there will be substantial likelihood he will become entitled to subsequent injuries benefits, his application against the Fund will not be barred--even if he has applied for normal benefits against his employer--if he files a proceeding against the Fund within a reasonable time after he learns from the board's findings on the issue of permanent disability that the Fund has probable liability. (Talcott, supra, 2 Cal. 3d at p. 65 [Emphasis added].)

Applicant's medical records showed normal blood pressures from June 28, 2005 through October 22, 2010, and stroke on February 13, 2013 was sole cause of visual and mental impairment.

From the decision · page 11Additionally, our reading of the record reveals no evidence that applicant knew he had a labor disabling injury that could give rise to a potential claim for SIBTF benefits at any time before the March 3, 2020 filing of the claim. Notably, the reporting and testimony of Drs. Hyman and Espy was that applicant had "all normal blood pressures" from June 28, 2005 through October 22, 2010; that applicant's February 13, 2013 stroke was the sole cause of his visual and mental status impairment; and that, absent the stroke, the impairment Dr. Espy found would not exist. (Opinion and Decision After Reconsideration, March 3, 2018, pp. 4-7.) Hence, while applicant's impairment resulting from subsequent injury was in part the result of his progressive hypertension, the record does not disclose that applicant had a prior labor disabling injury to the circulatory system, much less one which could "at least be of a kind which could ground an award of permanent partial disability." (Ferguson, supra; Application for SIBTF Benefits, March 3, 2020, pp. 6-7.)