ADJ17497715 · February 10, 2025

The Appeals Board found that the applicant met the 35% SIBTF eligibility threshold based on permanent disability calculations and granted reconsideration to amend the Findings of Fact to award permanent total disability less credits and attorney fees.

From the decision · page 1We have considered the Petition for Reconsideration, the Answer, and the contents of the Report, and we have reviewed the record in this matter. Based on the Report, which we adopt and incorporate, and for the reasons discussed below, we grant reconsideration to amend the Findings of Fact to show that applicant met the SIBTF eligibility requirements and to award permanent total

Applicant's combined preexisting and subsequent permanent partial disability results in 100% permanent disability, exceeding the 70% threshold for permanent total disability.

Favours Applicant prevailed

This fact supports the award of permanent total disability to the applicant.

From the decision · page 5(3) Applicant's subsequent lumbar permanent disability equals to 35% or more of his total disability. (4) The combined preexisting and subsequent permanent partial disability is greater than the subsequent permanent partial disability alone. (5) The combined preexisting and subsequent permanent partial disability results in 100% permanent disability, which is more than the 70% or more permanent disability threshold requirement. (6) The issue of attorney's fees is deferred.

Applicant met the 35% SIBTF eligibility threshold based on permanent disability calculations without apportionment.

Favours Applicant prevailed

This fact supports the finding of eligibility for SIBTF benefits and the award of permanent total disability.

From the decision · page 3Turning to the merits of this case, the reason the WCJ concluded that applicant's subsequent industrial lumbar injury resulted in 28% permanent disability was because the WCJ excluded applicant's lumbar motor loss of 28% whole person impairment for the L5 nerve root and 15% whole person impairment for the S1 nerve root in his SIBTF permanent disability ratings. The WCJ concluded that "the lower-extremity strength deficit rated by Dr. Schick does in fact overlap with the lower-extremity muscle weakness rated by Dr. Hebrard." (Opinion on Decision, p. 5.)3 The subsequent industrial lumbar injury, without accounting for overlap with applicant's pre-existing injuries, calculate to 49% permanent disability. (See WCJ Notes.)4 Taking away adjustments for the occupation or age of the employee, per section 4751, results in 39% permanent disability, which meets the 35% SIBTF eligibility threshold.

Dr. Schick provided a permanent disability rating of 29% whole person impairment for the subsequent industrial lumbar injury, which adjusted to 41% after considering diminished future earning capacity but before occupation and age adjustments. The parties stipulated to these numbers.

Her impairment rating was used to determine the SIBTF eligibility threshold and permanent disability award.

From the decision · page 4Alternatively, the subsequent industrial lumbar injury, without accounting for overlap, calculate to 50% permanent disability, which is what the parties stipulated to in the underlying matter. This 50% permanent disability is based on Dr. Schick's opinion that applicant suffered from 29% whole person impairment. (Applicant Exhibit 2, Kirsten Schick, M.D.'s report dated June 9, 2023, p. 24.) Note that Dr. Schick did not account 1% whole person impairment each for applicant's L5 and S1 nerve root sensory loss in her 29% whole person impairment calculation.

Dr. Hebrard assessed pre-existing disabilities including military-related rhinitis, headaches, and knee impairments, which combined with the subsequent industrial injury resulted in permanent total disability of 100%.

His combined impairment ratings were used to calculate the total permanent disability and support the award.

From the decision · page 8Discovery in the SIF case consists largely of the evaluation of Dr. Michael Hebrard, whose report is dated July 31, 2023. There, he assesses the military-related conditions of rhinitis and chronic headaches, as well as patellofemoral dysfunction involving both knees.1 It appears that he derived the rhinitis and headache ratings (9 and 7%WPI, respectively) from applicant's military records. The source of his ratings for the knees (10 WPI each) is less clear (see, fn. 1). the applicant reported pain and stiffness in the knees and he had a history of obesity. These are translated to the 10% ratings using the table in the AMA Guides2 used for impairment due to lower-extremity muscle weakness. Dr. Hebrard concludes that the various impairment numbers should be added together, rather than reduced by using the CVC.

California Labor Code

Labor Code section 4751

Used to establish SIBTF liability and eligibility threshold for permanent disability.

From the decision · page 3Turning to the merits of this case, the reason the WCJ concluded that applicant's subsequent industrial lumbar injury resulted in 28% permanent disability was because the WCJ excluded applicant's lumbar motor loss of 28% whole person impairment for the L5 nerve root and 15% whole person impairment for the S1 nerve root in his SIBTF permanent disability ratings. The WCJ concluded that "the lower-extremity strength deficit rated by Dr. Schick does in fact overlap with the lower-extremity muscle weakness rated by Dr. Hebrard." (Opinion on Decision, p. 5.)3 The subsequent industrial lumbar injury, without accounting for overlap with applicant's pre-existing injuries, calculate to 49% permanent disability. (See WCJ Notes.)4 Taking away adjustments for the occupation or age of the employee, per section 4751, results in 39% permanent disability, which meets the 35% SIBTF eligibility threshold.

California Labor Code

Labor Code section 4753

Credits and offsets to be applied to the permanent total disability award.

From the decision · page 2disability less Labor Code section 47531 credits and less attorney's fees to be determined by the parties with jurisdiction reserved on these issues at the trial level.

Overlap of lower-extremity strength deficits between Dr. Schick and Dr. Hebrard's ratings

From the decision · page 3Turning to the merits of this case, the reason the WCJ concluded that applicant's subsequent industrial lumbar injury resulted in 28% permanent disability was because the WCJ excluded applicant's lumbar motor loss of 28% whole person impairment for the L5 nerve root and 15% whole person impairment for the S1 nerve root in his SIBTF permanent disability ratings. The WCJ concluded that "the lower-extremity strength deficit rated by Dr. Schick does in fact overlap with the lower-extremity muscle weakness rated by Dr. Hebrard." (Opinion on Decision, p. 5.)3 The subsequent industrial lumbar injury, without accounting for overlap with applicant's pre-existing injuries, calculate to 49% permanent disability. (See WCJ Notes.)4 Taking away adjustments for the occupation or age of the employee, per section 4751, results in 39% permanent disability, which meets the 35% SIBTF eligibility threshold.