ADJ12253162 · October 9, 2023

The Board followed the Court of Appeal's holding in Bookout that the 35 percent threshold must be met by the subsequent injury alone without apportionment, and rejected defendant's contrary arguments based on other cases.

From the decision · page 1Defendant seeks reconsideration of the Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration we issued on July 14, 2023, wherein we rescinded the workers' compensation administrative law judge's (WCJ) findings that (1) while employed as a custodian on July 26, 2015, applicant claims to have sustained injury arising out of and in the course of employment to his lumbar spine and right elbow; (2) applicant does not meet the 35 percent permanent disability threshold from the subsequent industrial injury alone as required by Labor Code section 4751(b);1 (3) applicant does not meet the requirements for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits; and (4) applicant shall take nothing by his claim; and substituted findings that applicant meets the 35 percent permanent disability threshold from the subsequent industrial injury alone as required by section 4751(b); and the issues of whether applicant meets the remaining eligibility requirements for SIBTF benefits and, as appropriate, the issues of permanent disability; liens; attorneys' fees; the 25 percent retainer fee agreement; the offset pursuant to section 4753; and the statute of limitations are deferred; and we returned the matter to the trial court for further proceedings consistent with our decision.

Applicant meets the 35 percent permanent disability threshold from the subsequent industrial injury alone as required by Labor Code section 4751(b).

Favours Applicant prevailed

This fact was the basis for denying defendant's petition and for remanding the matter for further proceedings on remaining eligibility and related issues.

From the decision · page 1Defendant seeks reconsideration of the Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration we issued on July 14, 2023, wherein we rescinded the workers' compensation administrative law judge's (WCJ) findings that (1) while employed as a custodian on July 26, 2015, applicant claims to have sustained injury arising out of and in the course of employment to his lumbar spine and right elbow; (2) applicant does not meet the 35 percent permanent disability threshold from the subsequent industrial injury alone as required by Labor Code section 4751(b);1 (3) applicant does not meet the requirements for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits; and (4) applicant shall take nothing by his claim; and substituted findings that applicant meets the 35 percent permanent disability threshold from the subsequent industrial injury alone as required by section 4751(b); and the issues of whether applicant meets the remaining eligibility requirements for SIBTF benefits and, as appropriate, the issues of permanent disability; liens; attorneys' fees; the 25 percent retainer fee agreement; the offset pursuant to section 4753; and the statute of limitations are deferred; and we returned the matter to the trial court for further proceedings consistent with our decision.

Bookout v. Workmen's Comp. Appeals Bd. (1976) 62 Cal.App.3d 214

The 35 percent permanent disability threshold from the subsequent industrial injury alone must be met without apportionment.

The Board applied Bookout to reject defendant's argument and to find that applicant meets the 35 percent threshold as required by Labor Code section 4751(b).

From the decision · page 3However, the Court of Appeal held that applicant was erroneously denied SIBTF benefits under section 4751(b). (Bookout, supra, 62 Cal.App. 3d at p. 228.) It explained that the referee incorrectly instructed the rating specialist to apportion 34.5 percent for the preexisting nonindustrial heart disability (based on a standard rating of 30 percent) from the total subsequent injury disability of 65 percent (based on a standard rating of 60 percent), rather than utilizing the total disability for the subsequent injury "standing alone and without regard to or adjustment for the occupation or age of the employee" as required by section 4751(b). (Id.; § 4751(b).) It interpreted the language of this requirement as excluding apportionment. Thus, the court held that the permanent disability attributable to applicant's subsequent injury for the purpose of meeting the 35 percent threshold requirement under the statute was the standard rating of 60 percent. (Bookout, supra, 62 Cal.App.3d at p. 228; § 4751(b).)