ADJ17739286 — California WCAB decision

What the panel ordered

Petition for Reconsideration by Subsequent Injuries Benefits Trust Fund denied, affirming October 7, 2024 decision granting reconsideration to applicant and finding he met the 35% SIBTF eligibility threshold.

Petition for Reconsideration filed by applicant, initially denied by WCJ findings of July 17, 2024, then granted by WCAB on October 7, 2024, and reconsideration petition by SIBTF denied by this panel decision on January 21, 2025.

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold October 7, 2024.

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.

Other disputed issueApplicant prevailedlumbar spine · right shoulder

The Appeals Board panel followed binding precedent from Bookout and recent en banc decisions holding that the 35% SIBTF threshold is determined without apportionment, thus granting applicant's petition for reconsideration and denying SIBTF's petition.

From the decision · page 1Subsequent Injuries Benefits Trust Fund (SIBTF) seeks reconsideration of our October 7, 2024 Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration, where we concluded that the 35% SIBTF threshold requirement is determined without applying apportionment.

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

AMERelied upon

Concluded applicant had 13% whole person impairment due to 2012 injury without apportionment.

His impairment rating was used to assess prior injury impairment without apportionment in the context of SIBTF threshold determination.

From the decision · page 5evidence an extruded lumbar disk herniation, with a lower extremity EMG/NCS interpreted as positive bilaterally for radiculopathy. Applicant was evaluated for this prior injury by an agreed medical evaluator (AME), David Heskiaoff, M.D., who concluded that applicant had a 13% whole person impairment per DRE Cat III. Dr. Heskiaoff also concluded that the entire impairment was due to the 2012 injury, without apportionment. This prior claim resolved by way of stipulated award on 6/30/14 for 18% permanent impairment.

AMERelied upon

Concluded applicant had a 12% whole person right shoulder impairment due to 2019 injury and a 21% whole person lumbar impairment with 38% due to 2019 injury and 62% due to 2012 injury.

His impairment ratings were used to determine the combined impairment for the subsequent injury claim relevant to the SIBTF threshold.

From the decision · page 5Applicant was evaluated for the shoulder and lumbar injuries by AME, Steven Silbart, M.D. (Court Exhibits 2-3). Dr. Silbart concluded that applicant had a right shoulder impairment of 13% whole person entirely attributable to the 2019 injury. The undersigned notes, however, that Dr. Silbart's calculations and combination of shoulder impairments was slightly inaccurate, with a corrected impairment of only 12% whole person (the 12% WP calculations were utilized by the parties' in their subsequent stipulated award see below). With respect to the lumbar injury, Dr. Silbart concluded that applicant's impairment was 21% whole person of which only only 38% was due to the 2019 injury, with 62% caused by his prior 2012 injury.

ADJ17739286 · January 21, 2025

What the panel ordered

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