ADJ2649256 · August 4, 2023

Applicant did not know and could not reasonably have known of SIBTF liability within five years of injury date; applicant filed claim within reasonable time after learning of probable liability; petition for reconsideration denying time bar was properly denied.

From the decision · page 64 While UEBTF makes this argument for policy reasons, the undersigned finds the analysis to be similar. 5 The period within which proceedings may be commenced for the collection of the benefits provided by Article 2 (commencing with Section 4600) or Article 3 (commencing with Section 4650), or both, of Chapter 2 of Part 2 is one year from any of the following: (a)The date of injury. (b)The expiration of any period covered by payment under Article 3 (commencing with Section 4650) of Chapter 2 of Part 2. (c)The last date on which any benefits provided for in Article 2 (commencing with Section 4600) of Chapter 2 of Part 2 were furnished.

Applicant did not know and could not reasonably have known of SIBTF liability within five years of injury date.

Favours Applicant prevailed

This fact supports application of the reasonable time exception test, making the claim timely despite filing after five years.

From the decision · page 7even 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 at 65. As outlined in this court's F&A on the SIBTF case, the undersigned found Applicant `did not or could not reasonable have known' of SIBTF liability prior to the five years from the date of injury. Applicant's date of injury was May 17, 1992. Applicant did not bring his claim until on or about January 17, 2003. There is no evidence to the contrary imputing knowledge constructive or otherwise and SIBTF in its own post-trial brief acknowledged it was impossible for the Applicant to satisfy this prong of the test.

Dr. McColl found that prior right knee injuries did not result in permanent disability and that applicant had productive years after the 1985 injury; no evidence of labor disabling prior right knee injury.

The WCJ relied on Dr. McColl's report to find no evidence that prior right knee injury caused permanent disability, supporting the finding that applicant did not know of SIBTF liability within five years.

From the decision · page 4In connection with the subsequent injury CT claim, there were medical reports from three Qualified Medical Examiners ("QME"s): Dr. McColl, (Applicant's QME), Dr. Marinow (TIG's QME) and Dr. Segil (New York Nicks QME). In the subsequent injury claim F&A, the WCJ relied on the reports of Dr. McColl and Dr. Marinow and found Dr. Segil's reports were not substantial medical evidence. (F&A supra at p. 3). Using the range of medical evidence between reports of Dr. McColl and Dr. Marinow, the WCJ found injury to Applicant's low back, right knee, bilateral shoulders, right hip and left ankle. (F&A). The WCJ found apportionment only to the right knee with 75% related to the CT and 25% due to a 1985 injury pursuant to report of Dr. McColl. (F&A supra at p. 5).

Subsequent Injuries Fund v. Workmens' Comp. Appeals Bd. (Talcott) (1970) 2 Cal.3d 56

Reasonable time exception test for SIBTF claim timeliness from Subsequent Injuries Fund v. Workmens' Comp. Appeals Bd. (Talcott) (1970) 2 Cal.3d 56

Applicant did not know and could not reasonably have known of SIBTF liability within five years; claim filed within reasonable time after learning probable liability.

From the decision · page 64 While UEBTF makes this argument for policy reasons, the undersigned finds the analysis to be similar. 5 The period within which proceedings may be commenced for the collection of the benefits provided by Article 2 (commencing with Section 4600) or Article 3 (commencing with Section 4650), or both, of Chapter 2 of Part 2 is one year from any of the following: (a)The date of injury. (b)The expiration of any period covered by payment under Article 3 (commencing with Section 4650) of Chapter 2 of Part 2. (c)The last date on which any benefits provided for in Article 2 (commencing with Section 4600) of Chapter 2 of Part 2 were furnished.

Labor Code section 4751

Labor Code section 4751 regarding apportionment and permanent disability thresholds for subsequent injuries

Used to guide analysis of probable liability and apportionment in SIBTF claim.

From the decision · page 7Therefore, this court was left to decide if Applicant filed his SIBTF claim within a reasonable time after he learned from the board's findings on the issue of permanent disability that the Fund may have probable liability. It is undisputed that there is a finding from the board on the issue of permanent disability. This trial court was thus left to analyze whether Applicant filed within a `reasonable time' after Applicant learned that the Fund had `probable liability'. There is a dearth of case law expounding on the issue of probable liability as it comes this issue. Therefore, the undersigned looked to Labor Code section 4751 and its interpreting cases for guidance. Labor Code section 4751 states:

Applicant did not know and could not reasonably have known of SIBTF liability within five years of injury date.

From the decision · page 7even 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 at 65. As outlined in this court's F&A on the SIBTF case, the undersigned found Applicant `did not or could not reasonable have known' of SIBTF liability prior to the five years from the date of injury. Applicant's date of injury was May 17, 1992. Applicant did not bring his claim until on or about January 17, 2003. There is no evidence to the contrary imputing knowledge constructive or otherwise and SIBTF in its own post-trial brief acknowledged it was impossible for the Applicant to satisfy this prong of the test.