ADJ7261956 · May 2, 2024

The Appeals Board found that applicant was not on notice of a substantial likelihood of entitlement to SIBTF benefits until Dr. Newman's March 29, 2018 report, which met the Talcott standard for notice, making the petition timely as filed no later than October 30, 2017.

From the decision · page 9Returning to the question of when applicant received notice of a finding of previous disability or impairment establishing her knowledge of probable SIBTF liability, the record reveals that she lacked any such notice until she received Dr. Newman's March 29, 2018, which opined that applicant's June 2, 2009 specific injury constituted a subsequent injury resulting in additional permanent partial disability to the right and left shoulders, that the resulting subsequent disabilities equaled more than 35 percent of applicant's total disability, and that she otherwise met the

Applicant was not on notice of probable SIBTF liability until Dr. Newman's March 29, 2018 report.

Favours Applicant prevailed

This report met the Talcott standard for notice, making the petition timely as filed no later than October 30, 2017.

From the decision · page 9Returning to the question of when applicant received notice of a finding of previous disability or impairment establishing her knowledge of probable SIBTF liability, the record reveals that she lacked any such notice until she received Dr. Newman's March 29, 2018, which opined that applicant's June 2, 2009 specific injury constituted a subsequent injury resulting in additional permanent partial disability to the right and left shoulders, that the resulting subsequent disabilities equaled more than 35 percent of applicant's total disability, and that she otherwise met the

Dr. Warbritton's July 2, 2014 report did not establish substantial likelihood of SIBTF entitlement and attributed all right shoulder disability to the June 2, 2009 injury.

Favours Defendant prevailed

This lack of notice meant the petition was not untimely as of that date.

From the decision · page 8Here, Dr. Warbritton's July 2, 2014 report attributes applicant's left knee and right knee disabilities to "the specific and cumulative trauma injuries of June 2, 2009," without identifying which, if either, injury may have resulted in additional permanent partial disability, and without opining whether any such additional permanent partial disability met the criteria for SIBTF benefits, i.e., whether the injury affected an opposite and corresponding member that was previously partially disabled and equaled 5 percent or more of the total disability, and whether the injury resulted in subsequent disabilities equaling 35 percent or more of the total disability and, when combined with preexisting disability, exceeded the subsequent disability alone and equaled 70 percent or more of the total disability. (Ex. 6, Report from AME Dr. Warbritton, July 2, 2014, p. 13-17.)

March 29, 2018 report opined that applicant's June 2, 2009 injury constituted a subsequent injury resulting in additional permanent partial disability to right and left shoulders, with subsequent disabilities equaling more than 35% of total disability, meeting threshold requirements for SIBTF benefits.

This report provided the requisite notice of probable SIBTF liability under Talcott, which was determinative of timeliness.

From the decision · page 9Returning to the question of when applicant received notice of a finding of previous disability or impairment establishing her knowledge of probable SIBTF liability, the record reveals that she lacked any such notice until she received Dr. Newman's March 29, 2018, which opined that applicant's June 2, 2009 specific injury constituted a subsequent injury resulting in additional permanent partial disability to the right and left shoulders, that the resulting subsequent disabilities equaled more than 35 percent of applicant's total disability, and that she otherwise met the

July 2, 2014 report attributed disabilities to June 2, 2009 injury but did not establish substantial likelihood of SIBTF entitlement; attributed all right shoulder disability to June 2, 2009 injury, precluding prior right shoulder partial disability.

Report did not provide notice of probable SIBTF liability under Talcott, thus not determinative of timeliness.

From the decision · page 8Here, Dr. Warbritton's July 2, 2014 report attributes applicant's left knee and right knee disabilities to "the specific and cumulative trauma injuries of June 2, 2009," without identifying which, if either, injury may have resulted in additional permanent partial disability, and without opining whether any such additional permanent partial disability met the criteria for SIBTF benefits, i.e., whether the injury affected an opposite and corresponding member that was previously partially disabled and equaled 5 percent or more of the total disability, and whether the injury resulted in subsequent disabilities equaling 35 percent or more of the total disability and, when combined with preexisting disability, exceeded the subsequent disability alone and equaled 70 percent or more of the total disability. (Ex. 6, Report from AME Dr. Warbritton, July 2, 2014, p. 13-17.)

Subsequent Injuries Fund v. Workmens' Comp. Appeals Bd. (Talcott) (1970) 2 Cal.3d 56, 65

Talcott standard for notice of probable SIBTF liability

Applicant was not on notice of probable SIBTF liability until Dr. Newman's March 29, 2018 report, thus petition was timely as filed.

From the decision · page 5Talcott holds that where, as here, the SIBTF application is filed more than 5 years post injury (the date of injury is 6/2/2009, and the first conceivable filing date is 7/26/2016) the claim must be filed within a `reasonable time' from that date on which Applicant knew or should have known that a possible SIBTF claim had merit. In this case, Dr. Warbritton's report dated 7/2/2014 (Exhibit 6) provided the requisite knowledge.... This report provided a basis for a strong belief that an SIBTF claim would have a significant possibility of success.... [T]here is no evidence in the settlement that contributed to the Applicant's knowledge of a potential SIBTF claim in any way. It certainly did not change the state of the medical evidence in any way.... Applicant points out, correctly, that the claim was first filed with the WCAB on 7/26/2016.

Labor Code section 4751

Requirements for SIBTF benefits under Labor Code section 4751

Applicant's injury and disability met the threshold requirements for SIBTF benefits as per Dr. Newman's report.

From the decision · page 7In particular, Labor Code section 4751 provides:

Todd v. Subsequent Injuries Benefits Trust Fund (2020) 85 Cal.Comp.Cases 576, 581-582

Elements to recover SIBTF benefits

Applicant met the elements for SIBTF benefits as outlined in Todd, supported by medical evidence.

From the decision · page 7In Todd v. Subsequent Injuries Benefits Trust Fund (2020) 85 Cal.Comp.Cases 576, 581-

Dr. Warbritton's July 2, 2014 report did not establish substantial likelihood of SIBTF entitlement and attributed all right shoulder disability to the June 2, 2009 injury, precluding prior right shoulder partial disability.

From the decision · page 8Here, Dr. Warbritton's July 2, 2014 report attributes applicant's left knee and right knee disabilities to "the specific and cumulative trauma injuries of June 2, 2009," without identifying which, if either, injury may have resulted in additional permanent partial disability, and without opining whether any such additional permanent partial disability met the criteria for SIBTF benefits, i.e., whether the injury affected an opposite and corresponding member that was previously partially disabled and equaled 5 percent or more of the total disability, and whether the injury resulted in subsequent disabilities equaling 35 percent or more of the total disability and, when combined with preexisting disability, exceeded the subsequent disability alone and equaled 70 percent or more of the total disability. (Ex. 6, Report from AME Dr. Warbritton, July 2, 2014, p. 13-17.)

Dr. Newman's March 29, 2018 report opined that applicant's injury met threshold criteria for SIBTF benefits, providing notice of probable liability.

From the decision · page 9Returning to the question of when applicant received notice of a finding of previous disability or impairment establishing her knowledge of probable SIBTF liability, the record reveals that she lacked any such notice until she received Dr. Newman's March 29, 2018, which opined that applicant's June 2, 2009 specific injury constituted a subsequent injury resulting in additional permanent partial disability to the right and left shoulders, that the resulting subsequent disabilities equaled more than 35 percent of applicant's total disability, and that she otherwise met the