What the panel ordered
Petition for Reconsideration denied, affirming the July 14, 2023 decision that applicant meets the 35 percent permanent disability threshold from the subsequent industrial injury alone and remanding for further proceedings.
Petition for Reconsideration filed by Defendant seeking review of the July 14, 2023 Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration, which rescinded WCJ findings and returned the matter for further proceedings.
This docket was decided more than once. Shown here is the latest released decision; we also hold July 14, 2023.
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.
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Order Granting Petition for Reconsideration and Decision After Reconsideration we issued on July 14, 2023, wherein we rescinded the workers' compensation administrative law judge's (WCJ) findings that (1) while employed as a custodian on July 26, 2015, applicant claims to have sustained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.