RICHARD TODD, Applicant,
v.
SUBSEQUENT INJURIES BENEFITS TRUST FUND, Defendant.
No. ADJ7475146
California Workers Compensation Decisions
Workers’ Compensation Appeals Board State of California
June 23, 2020
(Van
Nuys District Office)
OPINION
AND DECISION AFTER RECONSIDERATION (EN BANC)
KATHERINE A. ZALEWSKI, CHAIR.
We
previously granted defendant Subsequent Injuries Benefits
Trust Fund (SIBTF)’s Petition for Reconsideration to
provide an opportunity to further study the legal and factual
issues raised by the Petition. This is our opinion and
decision after reconsideration (en banc).
[1]
To
secure uniformity of decision in the future, the Chair of the
Appeals Board, upon a unanimous vote of its members, assigned
this case to the Appeals Board as a whole for an en banc
decision.
2 (Lab. Code, § 115.)
[3]
SIBTF
seeks reconsideration of the Findings and Award issued by the
workers’ compensation administrative law judge (WCJ) on
July 17, 2017. The WCJ issued an award in accordance with
section 4751
4 in favor of applicant and against SIBTF of
100% permanent disability, less statutory credits to SIBTF
under section 4753
5 and less attorney’s fees. The
finding of 100% permanent disability was determined by adding
applicant’s prior stipulated awards of permanent
disability to his subsequent injury award.
SIBTF
contends that the WCJ should have combined the prior and
subsequent permanent disabilities under the Combined Values
Chart (CVC) instead of adding them, resulting in less than
100% permanent disability.
We
received an Answer from applicant. We also received a Report
and Recommendation on Petition for Reconsideration (Report)
from the WCJ, recommending that the Petition be denied.
Based
upon our review of the record, the Petition, Answer, Report,
and the relevant statutes and case law, we affirm the
WCJ’s decision and hold that:
(1) Prior and subsequent permanent disabilities shall be
added to the extent they do not overlap in order to determine
the “combined permanent disability” specified in
section 4751; and
(2) SIBTF is liable, under section 4751, for the total amount
of the “combined permanent disability,” less the
amount due to applicant from the subsequent injury and less
credits allowable under section 4753.
I.
STATEMENT OF FACTS
Applicant,
a former police officer, sustained a cumulative trauma injury
arising out of and in the course of his employment with the
City of Los Angeles to his kidneys, heart, psyche, and in the
form of hypertension during the period from January 1, 1990
through November 25, 2009. (Minutes of Hearing and Summary of
Evidence (MOH/SOE), May 17, 2016, p. 2:4-7.) The MOH/SOE
identified the disputed issues for trial as permanent
disability, apportionment, and attorney’s fees. Under
“Other Issues,” SIBTF also disputed
applicant’s claim of 100% permanent disability.
(Id. at p. 2:15-24.)
6
At the
May 17, 2016 trial, the WCJ took judicial notice of a
Findings and Award issued on March 6, 2012 against defendant
employer of 64% permanent disability as a result of
applicant’s injury to his kidneys, heart, and in the
form of hypertension. (MOH/SOE, May 17, 2016, p. 3:6-7.)
Following the award of 64% permanent disability, applicant
filed a petition to reopen for new and further disability
related to applicant’s psychiatric injury. This
petition was resolved by way of stipulation to 68% permanent
disability, which included credit for the previous award of
64%. (Stipulations with Request for Award, September 6,
2013.) The WCJ took judicial notice of an award dated
September 11, 2013 approving stipulations for 68% permanent
disability stemming from the same body parts. (MOH/SOE, May
17, 2016, p. 3:6-7.)
Five
prior stipulated awards offered by applicant were admitted at
the May 17, 2016 trial as follows: Stipulation with Request
for Award in case ADJ6807484 with Award dated November 23,
2009 (Applicant’s Exh. 1); Stipulation with Request for
Award in case VNO 0486348 (ADJ671938) with Award dated
December 28, 2005 (Applicant’s Exh. 2); Stipulation
with Request for Award in case VNO 376604 with Award dated
July 26, 1999 (Applicant’s Exh. 3); Stipulation with
Request for Award in cases VNO 345088, MON 170580, MON
219930, and MON 210865 with Award dated August 12, 1998
(Applicant’s Exh. 4); and Stipulation with Request for
Award in case MON 170580 with Award dated February 8, 1994
(Applicant’s Exh. 5). Applicant also offered a
vocational assessment report from Broadus & Associates
dated August 12, 2015, which was admitted into evidence over
SIBTF’s objection. (Applicant’s Exh. 6; MOH/SOE,
May 17, 2016, p. 4:5-23.)
On
September 15, 2016, the WCJ issued a notice of status
conference requesting further development of the record and
requesting that the parties be prepared to provide permanent
disability ratings in the five stipulated awards offered at
trial by applicant (Applicant’s Exhs. 1-5), and in the
current case, ADJ7475146. The WCJ vacated her previous
submission and set the matter for a status conference to
address development of the record.
On
February 22, 2017, applicant’s attorney responded by
letter to the WCJ’s request and indicated that,
pursuant to applicant’s trial brief, applicant was
relying on the stipulated awards in the current case,
ADJ7475146, and in prior cases ADJ6807484, MON 210685, and
VNO 0486348 in support of applicant’s argument for a
100% permanent disability award.
7 Applicant’s counsel
provided the following ratings:
ADJ7475146
Hypertension- 4.01 – 25 [5] – 32 – 4901
– 41 – 43 Kidneys- 7.01 – 25 [2] – 29
– 490H – 35 – 37 Psyche- .30 {14.01 –
18 [8] – 25 – 490J – 36 – 40} 12 43 C
37 C 12 = 68
ADJ6807484
Back- .80 {15.03 – 16 [5] – 20 – 490I
– 27 – 29} 23
MON 210685 (ADJ3295546) [sic]
Right Shoulder- 7.3 – 7 – 54I – 11 –
9:3 = 10
VNO 486348 (ADJ671938)
Gastrointestinal- 6.02 – 4 [6] – 5 – 4901
– 8 – 8.
[Based on a split with the defense QME that rated 0%, the
parties compromised on a stipulated award of 4% PD.]
(Applicant’s Exh. 7.)
SIBTF
did not respond to applicant’s February 22, 2017 letter
(Applicant’s Exh. 7) or provide its own ratings. The
matter was submitted on April 25, 2017, and the Findings and
Award issued on July 17, 2017, wherein the WCJ found, in
pertinent part, that the sum of applicant’s successive
disabilities entitled applicant to permanent and total
disability.
8
In its
Petition, SIBTF does not dispute that applicant has met the
threshold for SIBTF liability under section 4751, nor does it
dispute the permanent disability ratings offered by
applicant. SIBTF also does not raise an issue with respect to
overlap between the successive disabilities. Accordingly, the
sole issue presented by the Petition is whether the WCJ
correctly combined applicant’s prior and subsequent
permanent disabilities under section 4751 by adding them to
find that applicant is permanently and totally disabled.
(Petition, pp. 1-3.)
II.
DISCUSSION
SIBTF
is a state fund that provides benefits to employees with
preexisting permanent disability who sustain subsequent
industrial disability. The purpose of the statute is to
encourage the employment of the disabled as part of a
“complete system of [workers’] compensation
contemplated by our Constitution.” (Subsequent
Injuries Fund of the State of California v. Industrial Acci.
Com. (Patterson) (1952) 39 Cal.2d 83 [17
Cal.Comp.Cases 142]; Ferguson v. Industrial Acci.
Com. (1958) 50 Cal.2d 469, 475; Escobedo v,
Marshalls (2005) 70 Cal.Comp.Cases 604, 619 [2005 Cal.
Wrk. Comp. LEXIS 71] (Appeals Board en banc).)
SIBTF
is codified in section 4751, which provides:
If 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
...
