ADJ9489540 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; Amended Findings and Award affirmed with amendment that the subsequent industrial injury resulted in a findings and award final on May 3, 2018; attorney fee amount deferred.

Defendant sought reconsideration of the Amended Findings and Award issued April 5, 2024; WCJ issued an award in favor of applicant; WCJ's Report and Recommendation on Petition for Reconsideration recommended denial; WCAB granted reconsideration and affirmed the F&A with amendments.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Discrimination under Labor Code §132aApplicant prevailedhypertension · visual loss · cognitive impairment

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 facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

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].)

ADJ9489540 · June 28, 2024

What the panel ordered

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The facts that decided it

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