What the panel ordered
The WCAB rescinded the July 15, 2022 Findings and Order and substituted findings that applicant's subsequent permanent disability equals 35% or more of his total disability when considered alone and without regard to occupation or age. The issues of combined preexisting and subsequent permanent partial disability exceeding subsequent permanent disability alone and whether it equals 70% or more are deferred. The matter is returned to the trial level for further proceedings.
Applicant seeks reconsideration of the Findings and Order issued on July 15, 2022, which denied benefits from the Subsequent Injuries Benefit Trust Fund (SIBTF) and found 34% permanent disability from a 2009 injury. The WCJ had ordered denial of SIBTF benefits. The WCAB granted reconsideration to study factual and legal issues and issued a decision after reconsideration.
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.
The WCAB found that the applicant's subsequent permanent disability equals 35% or more of his total disability when considered alone and without regard to occupation or age, based on the Bookout precedent excluding apportionment from the calculation of subsequent permanent disability.
From the decision · page 11Accordingly, we will substitute a finding that applicant's subsequent permanent disability equals 35% or more of his total disability when considered alone and without regard to occupation or age.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's subsequent permanent disability equals 35% or more of his total disability when considered alone and without regard to occupation or age.
Favours Applicant prevailed
This fact meets the threshold for entitlement to SIBTF benefits under Labor Code section 4751, leading to rescission of the prior Findings and Order and substitution of findings in favor of the applicant.
From the decision · page 11Accordingly, we will substitute a finding that applicant's subsequent permanent disability equals 35% or more of his total disability when considered alone and without regard to occupation or age.
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.
Opined that applicant's sexual dysfunction was nonindustrial and that psychiatric disability was due to multiple sclerosis and depression, not the 2009 injury.
The WCJ relied on applicant's credible testimony over Dr. Robbins' opinion regarding sexual dysfunction.
From the decision · page 7Here, the record shows that, although Dr. Robbins opined that applicant's sexual
Found back and left knee maximally improved with residual impairment and some apportionment to preexisting pathology; rated permanent disability at 34%.
The WCAB found the apportionment approach erroneous for calculating subsequent permanent disability under section 4751.
From the decision · page 4In the litigation of the case in chief, the parties employed an agreed medical evaluator (AME) in orthopedics, Dr. Steven Isono, and another in psychiatry, Dr. James Robbins. The former wrote three reports, in 2010 and 2011, and the latter wrote one, in 2011; both were deposed. Briefly, Dr. Isono, in his initial report of November 3, 2010, reviews an extensive history, including many years of treatment involving the left knee, including four arthroscopic surgeries, from the mid-1970s through August, 1997 (a fifth took place in June, 2011), and a procedure to the low back on May 10, 2010, described as a posterior fusion at L4-5, and concludes that applicant's condition would not reach permanent and stationary status until the completion of investigative studies including a CT myelogram, electrodiagnostics and an MRI with contrast. (Exh. 10) In his next evaluation, dated October 18, 2011, the AME finds both the back and the left knee maximally improved, with residual impairment rated using the AMA Guides, with some apportionment to preexisting pathology in both. (Exh. 9)
Reported and testified that applicant is essentially unable to return to gainful employment.
From the decision · page 5In addition, the applicant's treating physician, Dr. Richard Shinaman, has reported and testified that he is essentially unable to return to gainful employment. (Exh. 3)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code Section 4751
Labor Code 4751
Defines thresholds for subsequent injury permanent disability benefits, including 35% threshold without apportionment.
From the decision · page 7If an employee who is permanently partially disabled receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous disability or impairment is a permanent disability equal to 70 percent or more of total, he shall be paid in addition to the compensation due under this code for the permanent partial disability caused by the last injury compensation for the remainder of the combined permanent disability existing after the last injury as provided in this article; provided, that either (a) the previous disability or impairment affected a hand, an arm, a foot, a leg, or an eye, and the permanent disability resulting from the subsequent injury affects the opposite and corresponding member, and such latter permanent disability,
Bookout case law
Bookout v. Workmen's Comp. Appeals Bd. (1976) 62 Cal.App.3d 214
Precludes use of apportionment in calculating subsequent permanent disability for SIBTF benefits.
From the decision · page 8Applicant contends that his subsequent permanent disability meets the 35% threshold on the grounds that Bookout v. Workmen's Comp. Appeals Bd. (1976) 62 Cal.App.3d 214 [41 Cal.Comp.Cases 595] and its progeny exclude apportionment from the calculation of subsequent permanent disability.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible testimony regarding sexual dysfunction despite Dr. Robbins' opinion it was nonindustrial
From the decision · page 7dysfunction was nonindustrial, the WCJ relied upon applicant's credible testimony to conclude
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About this page
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