ADJ9999707 · May 12, 2023

The WCJ found that the applicant met all eligibility requirements for SIBTF benefits, including having a pre-existing labor-disabling impairment, a subsequent industrial injury causing additional permanent disability, and a combined permanent disability of 70% or more. The WCAB panel affirmed this finding and denied the defendant's contentions against eligibility.

From the decision · page 1Defendant seeks reconsideration of the Findings and Order on Application for Subsequent Injuries Benefits Trust Fund Benefits (F&O) issued on February 14, 2023, wherein the workers' compensation administrative law judge (WCJ) found as relevant that (1) applicant satisfied the requirements to qualify for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits on the following grounds: (a) applicant had a permanent partial labor-disabling impairment at the time of the subsequent injury; (b) the subsequent injury arose out of and in the course of employment and resulted in an additional permanent partial disability; (c) the degree of permanent disability caused by the combination of the pre-existing and the subsequent injury is greater than the disability that would have resulted from the subsequent injury alone; (d) the combined effect of the subsequent injury and the previous disability or impairment is seventy percent or more of total disability; (e) the permanent disability resulting from the subsequent industrial injury is thirty-five percent or more when such disability is considered alone and without regard to, or adjustment for, the age or occupation of the employee; and (2) applicant is one hundred percent permanently disabled. The WCJ ordered that applicant meets the requirements for SIBTF benefits and that applicant is permanently totally disabled.

Applicant had a pre-existing labor-disabling peripheral neuropathy and 2012 industrial injury to hips before the 2015 subsequent industrial injury.

Favours Applicant prevailed

This established the pre-existing disability requirement for SIBTF benefits eligibility.

From the decision · page 4The WCJ listened to the applicant's live testimony and found it reliable and credible.... The applicant had a pre-existing disability to her bilateral lower extremities due to longstanding peripheral neuropathy, which occurred before the 2015 subsequent industrial injury. The SIBTF QME reports of Michael Sinel M.D. and the applicant's trial testimony establish that the employer made reasonable accommodations of a work restriction that physically limited the applicant's ability to conduct the trade shows. The latter was an essential part of her job. The employer provided a "helper" who performed most of the physical labor at the trade shows.... The defendant contends that the applicant did not have a prior labor-disabling disability until the 2012 industrial injury and did not prove that the peripheral neuropathy was labor-disabling until her condition flared up due to her 2012 specific injury. However, even if the defendant's assertion is true, the peripheral neuropathy still pre-existed the 2015 disability....

The subsequent industrial injury caused additional permanent disability exceeding 35% before age and occupation adjustments.

Favours Applicant prevailed

This satisfied the threshold for the subsequent injury disability requirement for SIBTF benefits.

From the decision · page 5The industrial injury meets the 35 percent threshold requirement for SIBTF since the subsequent industrial disability, without adjusting for age and occupation, is a 40 percent permanent disability. The combined impairment, moreover, does not include impairments recommended by Dr. Sinel of 3 percent WPI for psyche pain and 3 percent WPI for medication usage.

The combined effect of the pre-existing and subsequent injuries resulted in a permanent disability of 70% or more.

Favours Applicant prevailed

This met the combined disability threshold for SIBTF benefits eligibility.

From the decision · page 6subsequent injury and the pre-existing disability are more than 70 percent. The vocational expert states that the applicant is 100 percent disabled by the combined effect of the pre-existing disabilities and the 2015 industrial injury. The applicant testified that she could no longer work after the 2015 cumulative trauma injury (MOH/SOE, 5: 14 § 15, 6: 23 § 24). The report of Dr. Sinel indicates that the applicant is permanently totally disabled. "Having performed a comprehensive examination and reviewed the medical records, I do not believe that the applicant could perform and sustain any full-time competitive work in view of the combination of these limitations." He further does not believe the applicant will be able to return to gainful work in the future and concludes the applicant is permanently totally disabled. (Michael Sinel, M.D., 01/17/2019 report, Conclusions on Disability, pg. 64 [Applicant's Exh. 2]). Based on the above, the WCJ agrees that the permanent impairment is a permanent total disability. (Opinion on Decision, pp. 4-9.)

Vocational and medical-legal evaluations concluded the applicant is permanently totally disabled and unable to return to suitable gainful employment.

Favours Applicant prevailed

Supported the finding of permanent total disability for SIBTF benefits.

From the decision · page 5SIBTF has full discovery rights to obtain evidence regarding the nature of the impairment.... The applicant must establish that the combined effect of the pre-existing disability and the subsequent injury equals a permanent disability of 70 percent or greater. The Forensic Medical Legal Vocational Evaluation Report by Dr. Luis Mas, dated April 28, 2020, states that the applicant is not vocationally feasible and is not expected to return to suitable gainful employment through vocational rehabilitation. She is unable to participate in any vocational training because of the work limitations and restrictions and due to chronic pain, peripheral neuropathy, neck and cervical spine, bilateral hips, feet, and ankle neuropathy from pre-existing and work injuries (Luis Mas, Ph.D., 04/28/2020, pg. 25 [Applicant's Exh. 3]). The vocational and medical-legal reports show that the combined effects of the

Dr. Sinel opined that the applicant had a pre-existing disability rated at 8% WPI for each lower extremity due to peripheral neuropathy and 2% WPI for each hip due to a 2012 industrial injury. He also opined that the subsequent industrial injury caused additional impairments and that the combined effect of pre-existing and subsequent injuries resulted in permanent total disability.

Dr. Sinel's thorough and well-reasoned reports were deemed substantial medical evidence supporting the applicant's eligibility for SIBTF benefits and permanent total disability.

From the decision · page 4The WCJ listened to the applicant's live testimony and found it reliable and credible.... The applicant had a pre-existing disability to her bilateral lower extremities due to longstanding peripheral neuropathy, which occurred before the 2015 subsequent industrial injury. The SIBTF QME reports of Michael Sinel M.D. and the applicant's trial testimony establish that the employer made reasonable accommodations of a work restriction that physically limited the applicant's ability to conduct the trade shows. The latter was an essential part of her job. The employer provided a "helper" who performed most of the physical labor at the trade shows.... The defendant contends that the applicant did not have a prior labor-disabling disability until the 2012 industrial injury and did not prove that the peripheral neuropathy was labor-disabling until her condition flared up due to her 2012 specific injury. However, even if the defendant's assertion is true, the peripheral neuropathy still pre-existed the 2015 disability....

Dr. Mas concluded that the applicant is not vocationally feasible and is permanently totally disabled due to combined effects of pre-existing and subsequent injuries.

Dr. Mas's vocational evaluation supported the finding of permanent total disability due to combined impairments.

From the decision · page 5SIBTF has full discovery rights to obtain evidence regarding the nature of the impairment.... The applicant must establish that the combined effect of the pre-existing disability and the subsequent injury equals a permanent disability of 70 percent or greater. The Forensic Medical Legal Vocational Evaluation Report by Dr. Luis Mas, dated April 28, 2020, states that the applicant is not vocationally feasible and is not expected to return to suitable gainful employment through vocational rehabilitation. She is unable to participate in any vocational training because of the work limitations and restrictions and due to chronic pain, peripheral neuropathy, neck and cervical spine, bilateral hips, feet, and ankle neuropathy from pre-existing and work injuries (Luis Mas, Ph.D., 04/28/2020, pg. 25 [Applicant's Exh. 3]). The vocational and medical-legal reports show that the combined effects of the

Dr. Danzig deferred evaluation of the applicant's feet and ankles to a neurologist, not addressing all body parts in his report.

Dr. Danzig's report did not address all body parts, particularly the feet, which were disputed, limiting its completeness for the disability rating.

From the decision · page 15The Compromise and Release agreement does not by itself constitute an "award of permanent disability under section 4664(b)." (See, Pasquotto v. Hayward Lumbar (2006) (WCAB en banc) 71 Cal. Comp. Cases 223, at 230; 2006 Cal. Work. Comp. LEXIS 35.) It is not collateral estoppel as to the percentage of permanent disability for the subsequent industrial injury, since there never was a prior adjudication as to the percentage of permanent disability. The Compromise and Release instead highlights that there was a dispute concerning the nature and extent of the injury and permanent disability. It nowhere includes a specific finding concerning the permanent disability for the subsequent industrial injury. Dr. Danzig's report does not address all body parts since the feet were disputed. For example, he indicates on pages 101 and 102 that he defers "any further comments regarding the problem of the patient's feet and ankles to an AME neurologist." The petitioner cites cases that are distinguishable because they involve matters that include judicial findings regarding the percentage of permanent disability. (4) THE REPORT OF DR. SINEL VALIDLY OBTAINED

California Labor Code

Labor Code section 4060(b)

Regarding the admissibility of evaluations from physicians other than the one who opined on the underlying injury claim.

From the decision · page 7We next address defendant's contention that the admissible evidence fails to establish that applicant meets the eligibility requirements for SIBTF benefits. Specifically, defendant contends that, pursuant to Labor Code section 4060(b), applicant was not permitted to obtain an evaluation from any physician other than the physician who opined as to her underlying injury claim and, therefore, the WCJ considered Dr. Sinel's reporting to determine applicant's eligibility to receive SIBTF benefits in error.

California Labor Code

Labor Code section 4751

Allowing inclusion of the DFEC adjustment in SIBTF eligibility calculation.

Applicant's credible live testimony consistent with medical and vocational expert histories

From the decision · page 4The WCJ listened to the applicant's live testimony and found it reliable and credible.... The applicant had a pre-existing disability to her bilateral lower extremities due to longstanding peripheral neuropathy, which occurred before the 2015 subsequent industrial injury. The SIBTF QME reports of Michael Sinel M.D. and the applicant's trial testimony establish that the employer made reasonable accommodations of a work restriction that physically limited the applicant's ability to conduct the trade shows. The latter was an essential part of her job. The employer provided a "helper" who performed most of the physical labor at the trade shows.... The defendant contends that the applicant did not have a prior labor-disabling disability until the 2012 industrial injury and did not prove that the peripheral neuropathy was labor-disabling until her condition flared up due to her 2012 specific injury. However, even if the defendant's assertion is true, the peripheral neuropathy still pre-existed the 2015 disability....