What the panel treated as outcome-determinative, and which side it favoured.
Favours Defendant prevailed
This fact is central to the credit issue and the determination of whether the credit against SIBTF benefits is appropriate.
From the decision · page 6The records include the payments made to applicant from Social Security
Disability, but do not identify what injury or condition made her eligible for
the benefits....
Petitioner defendant contends that the opinion of David S. Silver, M.D.
(WCAB Exhibit DDDD, report of -1/09/2009) is not substantial evidence
that the 1996 accident produced a labor disabling disability. Apportionment
of disability to that accident alone would not support a finding that it
produced a labor disabling disability. But Dr. Silver went further than
simply apportioning. He notes that she had residual symptoms for almost a
full year after the accident that were still present when she began work at
Marymount.
Dr. Silver opined that the 1996 motor vehicle accident caused residual symptoms and was labor disabling, but he could not confirm fibromyalgia diagnosis at that time.
Favours Applicant prevailed
Supports the existence of a preexisting disability but does not establish the amount or permanent disability at the time of the 1996 accident, leading to deferral of the issue.
From the decision · page 3The subsequent injury caused fibromyalgia. That condition was also
partially caused by the 1996 MVA according to David S. Silver, M.D.,
agreed medical examiner in rheumatology (beginning with WCAB Exhibit
FFFF, report of 06/21/2006).
Applicant falsely asserted she did not receive SSD benefits, delaying proceedings and discovery was difficult but ultimately produced SSD payment records without basis for eligibility.
Favours Defendant prevailed
This affected the development of the record and the ability to determine the credit issue, favoring defendant's position to defer the issue.
From the decision · page 9Having determined that the record should be developed as to the amount of applicant's
preexisting disability, we acknowledge the WCJ's statements that applicant has asserted that
defendant may not conduct discovery as to the issue of whether it is entitled to a credit, that
applicant's false assertion that she did not receive SSD benefits delayed the proceedings, and that
discovery conducted to date includes records of SSD's payments but not records "identify[ing]
what injury or condition made her eligible for [SSD] benefits." (Report on Applicant's Petition,
p. 2; Report on Defendant's Petition, pp. 3-4.)