The Workers’ Compensation Appeals Board recently issued an en banc decision in June 2020 clarifying that prior and subsequent injuries should be “added” and not “combined” to determine whether the Subsequent Injuries Benefit Trust Fund (SIBTF) should be involved.
The title of the WCAB’s en banc decision is Richard Todd. Subsequent Injuries Benefit Trust Fund (6-23-2020, ADJ7475146).
The SIBTF, which is established per Labor Code §4751, is designed to encourage employers to hire people with disabilities. The new employer is only responsible for that portion of the disability caused by the employment, not for the old injuries the person may have suffered to the same or related body parts.
To understand how this works, consider a hypothetical applicant who was earning the “maximum” weekly wage that yields a permanent disability rate of $290.00 per week under the current code. If this applicant begins work with a pre-existing permanent disability of 35%, or $48,140, and then sustains more injury to the same or a related body part that brings the value to 70%, this isn’t just another $48,140, or $96,280.
Instead, because the “money chart” correlation between disability percentage and monetary value is not linear, 70% is $125,642.50, not to mention the life pension. So by hiring a person with a 35% permanent disability, the employer could be taking a considerable risk.
Fortunately, the California Legislature recognized this and passed Labor Code §4751, which would say that the new employer is only responsible for the 35% caused by the new employment, or $48,140.00. The applicant can apply to the SIBTF to make up the difference.
There are qualifications that an applicant seeking SIBTF benefits must prove, including the existence of the pre-existing permanent disability, there is a subsequent compensable injury resulting in the additional disability to the same or a related body part. In other words, a prior foot award of 40% would not trigger the SIBTF if the applicant’s new injury was a thumb. The “combined” pre-existing and subsequent injury must also equal 70% or more in permanent disability.
It is also helpful to understand that the combined values chart (CVC) does not merely add disability figures, but instead uses a non-linear formula. For instance, if there is a 10% injury to one body part and 20% to another, the “combined” value is 28%. As the number increases, it becomes harder to reach the 100% threshold.
To make the concept even more complicated, the meaning of the word “combined” as in “combined values chart” and the term “combined” as explained in §4751 mean different things. The word “combined” in the statute means the old and new injuries add up to more than 70% PD.
In this case, the applicant, Mr. Todd, argued that his previous injury should be added to his subsequent injury to come up to 100% PD. The SIBTF didn’t want to pay that much and filed an appeal, arguing that the old injury should be “combined with” the new injury using the CVC values chart for a total that was less than 100%. The trial court said that the word “combined” meant “added to,” and the WCAB on appeals agreed.
SIBTF was responsible for the monetary difference between 100% and the previously found permanent disability and other credits per the code.
It is also worth noting that this decision appears consistent with the decision in Benson v. WCAB (decided March 21, 2009) in which the board found that multiple distinct injuries are not “combined” but rather separately awarded, or added to each other.
On a separate, but important note, particularly for the applicant bar, the WCAB also ruled that there’s no specific statute of limitations on when an injured worker can apply for SIBTF. However, it must be done within a “reasonable amount of time” after they learn of a substantial likelihood of SIBTF liability.
Michael D. Peabody is a partner at the Law Offices of Bradford & Barthel’s Woodland Hills office. If you have questions about workers’ compensation issues, please feel free to contact him at firstname.lastname@example.org.
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