ADJ8042236 · November 28, 2023

The WCJ and Board found SIBTF is a governmental agency not subject to penalties under sections 4650, 5814, and 5814.5, and that SIBTF's payments were correct based on admitted evidence and stipulations binding the applicant.

From the decision · page 1Applicant seeks reconsideration of the Joint Findings of Fact and Order (F&O) issued on April 5, 2021, wherein the workers' compensation administrative law judge (WCJ) found as relevant that (1) the findings and award finding applicant one hundred percent permanently disabled and entitled to benefits from the Subsequent Injuries Benefits Trust Fund (SIBTF) was served on August 13, 2018; (2) SIBTF issued payment on the award on September 27, 2018; (3) SIBTF is a governmental agency and not an employer for purposes of Labor Code sections 4650, 5814 and 5814.5;1 (4) the payments made by SIBTF were correct; and (5) all other issues are moot.

SIBTF is a governmental agency and not an employer for purposes of Labor Code sections 4650, 5814, and 5814.5.

Favours Defendant prevailed

This status exempts SIBTF from penalties under these sections, supporting the denial of applicant's penalty claims.

From the decision · page 1Applicant seeks reconsideration of the Joint Findings of Fact and Order (F&O) issued on April 5, 2021, wherein the workers' compensation administrative law judge (WCJ) found as relevant that (1) the findings and award finding applicant one hundred percent permanently disabled and entitled to benefits from the Subsequent Injuries Benefits Trust Fund (SIBTF) was served on August 13, 2018; (2) SIBTF issued payment on the award on September 27, 2018; (3) SIBTF is a governmental agency and not an employer for purposes of Labor Code sections 4650, 5814 and 5814.5;1 (4) the payments made by SIBTF were correct; and (5) all other issues are moot.

Applicant and defendant stipulated to permanent disability indemnity payable at specified weekly rates beginning December 6, 2014.

Favours Defendant prevailed

The stipulation binds the applicant and supports the Board's rejection of the claim that SIBTF took credit at an incorrect rate.

Exhibits A and B admitted into evidence were more persuasive than applicant's CPA report.

Favours Defendant prevailed

The Board relied on these exhibits to find that SIBTF correctly paid the applicant her benefits due.

From the decision · page 5Applicant filed a Petition for Reconsideration from that decision and the Order was rescinded. The Petition alleged that the penalty was insufficient and the Award was incorrectly paid, among other issues. The parties were directed to obtain expert testimony with regard to the accuracy of the amounts paid (Minutes of Hearing 11/14/2019, Doc ID# 71597524). Applicant obtained a letter from a Certified Public Accountant Eric Hunt dated 2/6/2020 (Exhibit 20) and defendant sought to rely on correspondence from the claims examiner (Exhibit B).... As to Petitioners claim that the Award of SIBTF benefits was underpaid, petitioner again failed to carry its burden of proof on the issue. Based upon the defendant's exhibits admitted into evidence, Exhibits A and B, which were the more persuasive, it was found that SIBTF has correctly paid the applicant her benefits due. In support thereof, applicant submitted a letter from Eric Hunt, CPA. In reviewing his analysis, there is nothing to show that he has taken into account the employer's obligation for indemnity payments pursuant to the 99% Award. Its probative value is therefore dubious at best, and is insufficient to carry her burden of proof.... (Report, pp. 1-5.)

Provided opinion on applicant's prior non-industrial motor vehicle accident permanent disability rating of 9%.

Referenced in the WCJ report as part of the medical background and credit calculations.

From the decision · page 5the applicant, a Registered Nurse for the County of Los Angeles High Desert Health, received a stipulated Joint Award dated 12/21/2016 (EAMS Doc ID# 62502936) of 99% permanent disability for injuries to her lumbar spine, cervical spine, bilateral knees, bilateral ankles, bilateral shoulders, hip, psyche, GERD, both arms, both upper extremities, sleep disorder and stomach as a result of injuries sustained on 3/5/2010 (ADJ7897534) and during the period 7/22/1986 through 12/31/2012. Applicant filed an Application for Subsequent Injuries Fund Benefits on 1/24/2017 (EAMS Doc ID# 62682031). In 2006, Applicant sustained injury from a prior non-industrial motor vehicle accident which resulted in 9% permanent disability in the opinion of the Agreed Medical Examiner Alexander Angerman, M.D. The issue of entitlement to SIBTF benefits went to trial on 6/26/2018 and applicant was found to be 100% permanently and totally disabled as a result of her injuries and was awarded SIBTF benefits (Joint Findings & Award dated 8/10/2018, EAMS Doc ID# 67845673).

Labor Code sections 4650, 4751

Labor Code section 4650(b) requires timely payment of permanent disability benefits by employers, but SIBTF is not an employer and governed by section 4751.

The Board agreed with the WCJ that SIBTF is a governmental agency and not an employer for purposes of penalty statutes.

From the decision · page 7Petitioner is correct that section 4650, subdivision (b), which states "the employer" must make timely payment of permanent disability benefits, applies only to benefits payable by employers, and that the SIBTF is not considered an employer for purposes of payment of workers' compensation benefits. (See Subsequent Etc. Fund v. Ind. Acc. Com., supra, 39 Cal.2d at p. 92 ["We do not believe that the [SIBTF], even regarded as an entity, must necessarily be also regarded as in the position of an employer."].) Petitioner is also correct that the timing of SIBTF benefit payments is governed by section 4751. But petitioner is incorrect that those premises result in a different conclusion than the one reached by the Workers' Compensation Appeals Board... (Guerrero, supra, at pp. 1046-1047 [Emphasis added].)2

Labor Code sections 5814, 5814.5

Labor Code sections 5814 and 5814.5 penalties apply to employers but not to SIBTF.

The Board affirmed the WCJ's finding that penalties and attorney fees under these sections do not apply to SIBTF.

From the decision · page 9Accordingly, we agree with the WCJ that section 5814 penalties and section 5814.5

Labor Code section 5702

Section 5702 allows stipulations between counsel to be binding on the parties and the court.

The Board relied on the parties' stipulation regarding permanent disability indemnity rates to reject applicant's claim of incorrect credit rate.

Exhibits A and B admitted into evidence were more persuasive than applicant's CPA report.

From the decision · page 5Applicant filed a Petition for Reconsideration from that decision and the Order was rescinded. The Petition alleged that the penalty was insufficient and the Award was incorrectly paid, among other issues. The parties were directed to obtain expert testimony with regard to the accuracy of the amounts paid (Minutes of Hearing 11/14/2019, Doc ID# 71597524). Applicant obtained a letter from a Certified Public Accountant Eric Hunt dated 2/6/2020 (Exhibit 20) and defendant sought to rely on correspondence from the claims examiner (Exhibit B).... As to Petitioners claim that the Award of SIBTF benefits was underpaid, petitioner again failed to carry its burden of proof on the issue. Based upon the defendant's exhibits admitted into evidence, Exhibits A and B, which were the more persuasive, it was found that SIBTF has correctly paid the applicant her benefits due. In support thereof, applicant submitted a letter from Eric Hunt, CPA. In reviewing his analysis, there is nothing to show that he has taken into account the employer's obligation for indemnity payments pursuant to the 99% Award. Its probative value is therefore dubious at best, and is insufficient to carry her burden of proof.... (Report, pp. 1-5.)