ADJ7261956 — California WCAB decision

ADJ7261956 · May 2, 2024

The Findings and Order as Amended issued on April 14, 2021 is rescinded; findings substituted that the petition for SIBTF benefits was timely; all other issues deferred; matter returned to trial level for further proceedings.

Issues decided

Medical opinions weighed

Authorities named

District office

San Jose

What the panel ordered

Applicant sought reconsideration of the Findings and Order as Amended issued on April 14, 2021, which found her petition for SIBTF benefits untimely; the WCJ issued a Report and Recommendation denying the petition; the Appeals Board reconsidered and issued this decision after reconsideration.

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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.

Statute of limitationsApplicant prevailedlow back · knees · right shoulder · psyche · upper extremities

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

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

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.)

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.

otherRelied upon

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

AMEGiven great weight

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.)

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Defendant prevailed

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.)

Medical recordsfavours Applicant prevailed

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

ADJ7261956 · May 2, 2024

What the panel ordered

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The facts that decided it

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