What the panel ordered
Petition for reconsideration denied.
Petition for reconsideration of the WCJ's amended Findings of Fact issued on December 27, 2024, denied by the Appeals Board panel on March 25, 2025.
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 WCJ and Appeals Board found that the applicant's subsequent industrial injury caused 100% permanent total disability without apportionment, and the apportionment opinions of medical evaluators did not constitute substantial medical evidence due to lack of explanation and reasoning, thus the applicant did not meet the threshold for SIBTF benefits under Labor Code section 4751.
From the decision · page 1Applicant seeks reconsideration of the amended "Findings of Fact" (Findings) issued on December 27, 2024, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant failed to meet the threshold for obtaining Subsequent Injuries Benefits Trust Fund (SIBTF) benefits because applicant's subsequent industrial disability caused 100% permanent total disability without apportionment.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's subsequent industrial injury caused 100% permanent total disability without apportionment.
Favours Defendant prevailed
This finding meant the applicant did not meet the threshold for SIBTF benefits under Labor Code section 4751.
From the decision · page 1Applicant seeks reconsideration of the amended "Findings of Fact" (Findings) issued on December 27, 2024, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant failed to meet the threshold for obtaining Subsequent Injuries Benefits Trust Fund (SIBTF) benefits because applicant's subsequent industrial disability caused 100% permanent total disability without apportionment.
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.
Found 100% apportionment to the industrial injury for bilateral knees, with subjective and objective factors and work restrictions yielding PD ratings per the 1988 PDRS.
The applicant's bilateral knee injury was considered permanent and stationary with 100% apportionment to the industrial injury.
Reported prior non-industrial left knee injury and non-industrial bilateral carpal tunnel syndrome; apportioned 20% to a cumulative trauma injury without explanation, which was rejected as substantial evidence.
Apportionment opinion lacked explanation and was not substantial evidence.
From the decision · page 2Per Applicant's SIBTF evaluator, Demeil Betoushana, D.C., The applicant had suffered a prior non-industrial left knee injury on 7/10/1980 that resulted in arthroscopic surgery with partial medial meniscectomy. (APPL'S EX. A-4: SIBTF report, Demeil Betoushana, D.C., 9/12/22, p. 140.) Regarding the 1980 non-industrial left knee injury, Dr. Betoushana stated, "Concerning the 07-10- 80 specific nonindustrial injury the applicant sustained to his left knee after falling off a bike and eventually needing arthroscopic surgery with partial medial meniscectomy, with reasonable medical probability it is my opinion that his condition was permanent, labor disabling, and ratable as of 07-08-83, which is one year following his 07-08-82 left knee surgery." (Ib., p. 139.) Dr. Betoushana did not provide a separate rating for the 1980 injury separate from the 1991 industrial bilateral knee injury.
Found permanent total disability from combined injuries but apportionment opinion attributing 20% to a non-accepted injury was not substantial evidence due to lack of rationale.
Apportionment opinion did not meet Escobedo requirements for substantial evidence due to lack of explanation.
From the decision · page 3However, the second requirement that the subsequent industrial injury (SII) must have caused permanent partial disability is not met, because the applicant is permanently totally disabled as a result of the SII. In his 2/23/12 report, Dr. Robert Carson, the parties' AME, stated that the applicant had suffered permanent total disability as a result of his injury. Dr. Carson stated,
Apportioned 50% of psychiatric impairment to industrial injury and 50% to non-industrial conditions related to morbid obesity; apportionment rejected as not substantial evidence.
Apportionment opinion lacked substantial medical evidence due to inadequate explanation.
From the decision · page 4Dr. Morton Scheinbaum evaluated the applicant to address his psychological claim for the SIBTF case. Dr. Scheinbaum's 50% apportionment to a pre-existing non- industrial psyche condition does not constitute substantial medical evidence, either. Dr. Scheinbaum opined, "I would apportion 50% of the claimant's psychiatric impairment to the industrial injury of February 27, 2001, and 50% to nonindustrial, for the reasons as indicated above, predominantly related to the development of morbid obesity related to his Axis II personality disorder and the development of the complications related to the morbid obesity, both cerebrovascular and cardiovascular, but to also include chronic gastroesophageal reflux disease, chronic diabetes, insomnia, fatty liver and hiatal hernia, and chronic obstructive sleep apnea." (Dr. Scheinbaum, 12/6/22, pp. 132-133.) Dr. Scheinbaum stated that all of the alleged nonindustrial conditions such as the stroke of 2009, diabetes, fatty liver, etc., are related to the development of his morbid obesity. (APPL'S EX. A-6: SIBTF report, Morton J. Scheinbaum, M.D., 12/6/22., p. 131-132.)
Found applicant's weight gain and associated co-morbidities occurred after the industrial injury and could not cause preexisting labor-disabling disabilities.
Supported rejection of apportionment to preexisting conditions related to weight gain.
From the decision · page 4With respect to the weight gain, Dr. Jonathan Ng, AME in internal medicine for the SII, found that Applicant's weight gain occurred subsequent to the industrial injury. (APPL'S EX. A-14: AME report, Jonathan Ng, M.D., 4/7/10, pp. 40-41.) Therefore, his weight gain and associated co-morbidities could not cause preexisting labor- disabling disabilities.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Escobedo v. Marshall (2005) 70 Cal. Comp. Cases 604, 621 (en banc)
To be substantial evidence on apportionment, a medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination and history, and must set forth reasoning in support of its conclusions.
Applied to reject apportionment opinions lacking explanation and rationale.
From the decision · page 4... [T]o be substantial evidence on the issue of the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Escobedo v. Marshall (2005) 70 Cal. Comp. Cases 604, 621 (en banc).)
Labor Code section 4751
Labor Code section 4751 sets the eligibility criteria for SIBTF benefits, requiring proof of preexisting permanent partial disability, subsequent compensable injury causing additional permanent partial disability, combined disability greater than subsequent injury alone, and combined disability equal to 70% or more.
Applied to determine eligibility for SIBTF benefits.
From the decision · page 2Applicant has the burden of showing that they are entitled to benefits under Labor Code section 4751 by proving a pre-existing permanent partial disability; a subsequent compensable injury resulting in additional permanent partial disability; the combined pre-existing and subsequent permanent partial disability is greater than the subsequent permanent partial disability alone; and, the combined preexisting and subsequent permanent partial disability is equal to 70% or more. (Todd v. SIBTF (2020) 85 Cal.Comp.Cases 576, 581-582.)
What proof carried it
The evidence the panel weighed, by kind.
Apportionment opinions of medical evaluators lacked adequate explanation and reasoning, failing to constitute substantial medical evidence.
From the decision · page 8reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "When the foundation of an expert's testimony is determined to be inadequate as a matter of law, we are not bound by an apparent conflict in the evidence created by his bare conclusions." (People v. Bassett (1968) 69 Cal.2d 122, 139.) Here, and for the reasons stated by the WCJ in the
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About this page
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