ADJ7161613 · November 24, 2021

The Appeals Board found the record insufficient to determine the basis for the WCJ's decision barring the claim and noted the need for findings on permanent disability and substantial likelihood of entitlement to SIBTF benefits. The Board granted reconsideration and remanded for further proceedings to address the limitations issue properly.

From the decision · page 4Here, we are unable to ascertain the basis for the WCJ's decision with the existing record and as such, we rescind the July 8, 2021 Findings and Order and return this matter to the trial level for further proceedings.

Applicant was not aware of the SIBTF claim or the rating of Dr. Lewis' report until after 2019.

Favours Applicant prevailed

This lack of knowledge supports the argument that the statute of limitations should not bar the claim because applicant did not have constructive knowledge of entitlement within five years of injury.

There are no Minutes of Hearing, Summary of Evidence, or admitted exhibits in the record to support the WCJ's decision.

Favours Applicant prevailed

Without these, the Appeals Board could not ascertain the basis for the WCJ's decision barring the claim, leading to rescission and remand.

From the decision · page 3Turning to the issues raised in the Petition, we conclude that the record is lacking. There are no Minutes of Hearing and Summary of Evidence of the trial and there are no admitted exhibits.

Dr. Lewis authored a PQME report dated March 30, 2011, which did not provide applicant with a basis for determining substantial likelihood of entitlement to SIBTF benefits.

The report was cited by applicant as insufficient to provide constructive knowledge of entitlement to SIBTF benefits, relevant to the statute of limitations issue.

From the decision · page 1Applicant contends that his SIBTF claim should not be barred because (1) there was no Workers' Compensation Appeals Board (WCAB) findings on the issue of permanent disability, (2) neither the underlying Compromise and Release nor the Panel Qualified Medical Examination (PQME) report of Zan Ian Lewis, M.D., dated March 30, 2011, provided applicant with a basis for determining whether he had a substantial likelihood of entitlement to SIBTF benefits, (3) there is a dearth of information concerning SIBTF benefits and applicant should not be charged with constructive knowledge of his substantial likelihood of entitlement to SIBTF benefits, (4) application of the SIBTF limitations standard found in the California Supreme Court case Subsequent Injuries Fund v. Workmen's Comp. Appeals Bd. (Talcott) (1970) 2 Cal.3d 56 [35 Cal.Comp.Cases 80] supports applicant's contention that his SIBTF claim should not be barred, (5) applicant did not have constructive notice of a substantial SIBTF claim, (6) analogy to case law regarding statute of limitations for cumulative trauma injuries supports that applicant's SIBTF claim is not barred, and (7) SIBTF failed to carry its burden of proof on the affirmative defense of the statute of limitations.

Labor Code

Labor Code section 5909

Provides the time limit for the Appeals Board to act on a petition for reconsideration, relevant to timeliness of the petition.

From the decision · page 2We first address the timeliness of this Opinion. Labor Code1 section 5909 provides that a

Labor Code

Labor Code section 5313

Requires the WCJ to make and file findings on all facts involved and provide a summary of evidence and reasons for the decision, relevant to the insufficiency of the record.

From the decision · page 3Labor Code2 section 5313 requires the WCJ to,... make and file findings upon all facts involved in the controversy and an award, order, or decision stating the determination as to the rights of the parties. Together with the findings, decision, order or award there shall be served upon all the parties to the proceedings a summary of the evidence received and relied upon and the reasons or grounds upon which the determination was made. (§ 5313.)

California Supreme Court

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

Interpreted to mean the limitation period for SIBTF claims depends on applicant's knowledge of substantial likelihood of entitlement before five years from injury date.

From the decision · page 4In light of these four Supreme Court decisions [Talcott, supra, 2 Cal.3d 56; Subsequent Injuries Fund v. Workmens' Comp. Appeals Bd. (Pullum) (1970) 2 Cal.3d 78 [35 Cal.Comp.Cases 96]; Subsequent Injuries Fund v. Workmens' Comp. Appeals Bd. (Woodburn) (1970) 2 Cal.3d 81 [35 Cal.Comp.Cases 98]; Subsequent Injuries Fund v. Workmens' Comp. Appeals Bd. (Baca) (1970) 2 Cal.3d 74 [35 Cal.Comp.Cases 94]) we interpret the holding in Talcott to mean that if applicant knew or could reasonably be deemed to know that there will be a substantial likelihood of entitlement to subsequent injuries benefits before the expiration of five years from the date of injury, then the limitation period to file a SIBTF claim is five years from the date of injury. However, if applicant did not know and could not reasonably be deemed to know that there will be a substantial likelihood of entitlement to subsequent injuries benefits before the expiration of five years from the date of injury, then the limitation period to file a SIBT claim is a reasonable time after applicant learns from the WCAB's findings on the issue of permanent disability that SIBTF has probable liability.

Applicant's lack of knowledge of SIBTF claim and lack of information about Dr. Lewis' report rating until after 2019