To reach SIF liability, the injured worker has meet the INDUSTRIAL THRESHOLD:
- 5% CASES “Opposite and Corresponding” Member Requirement Hard v. WCAB (1974) 2 CWCR 48:
- THE SUBSEQUENT WORKER’S COMPENSATION CASE affected a hand, an arm, a foot, a leg, or an eye resulting on a permanent disability of 5% when considered alone and without regard to, or adjustment for, the occupation or age of the employee,
- The employee has a PRIOR PREEXISTED DISABILITY or IMPAIRMENT to the opposite or corresponding member. E.i Left Shoulder and Right Arm, Right leg and left knee.
- 35% CASES WPI:
- THE SUBSEQUENT WORKER’S COMPENSATION CASE resulted on a 35% permanent disability when considered alone and without regard to, or adjustment for, the occupation or age of the employee,
- The employee has a PRIOR PREEXISTED DISABILITY or IMPAIRMENT. E.i Diabetes, Hypertension, Psychological condition.
The Pre-existing Disability
Once Industrial Threshold was met there is another requirement, an “OVERALL THRESHOLD” which is: the calculation of the PD from the pre-existing disability or impairment PLUS the PD from the Worker’s Compensation Injury known as Subsequent Industry must equal 70% PD or greater.
The Pre-Existing Injury must meet the following criterias:
- The pre-existed injury must be labor disabling:
The Pre-existed must be ratable injury: The pre-existing condition must have been labor disabling, as it has been defined by the Courts as any condition that would be ratable if it had been caused by an industrial injury. Pursuant to Escobedo v. Marshalls (2005) 70 CCC 604, 19 [en banc], “…the chief requirement for SIF benefits is that the condition must have been ‘labor disabling’ prior to the occurrence of the subsequent industrial injury. (Ferguson v. Industrial Acc. Com. (1958) 50 Cal.2d 469, 477 [326 P.2d 145]23 CCC 108]; Franklin v. WCAB 79 Cal.App.3d at pp. 237-238.)”
The Pre-existed must simply be a disability for which partial permanent could be made if it were industrial: An injured worker to be entitled to SIBTF benefits, his prior permanent disability need not have caused actual earnings loss; the Court cited in Brown v.WCAB & SIF 36 CCC 627 (1971): “Although the prior disability need not be reflected in the form of loss of earnings, if it is not, it must be of a kind upon which an award for partial permanent disabilities could be made had it been industrially caused. This is necessary to distinguish it from a “lighting up” aggravation, or acceleration of the pre-existing physical condition where the employer is to be held liable for the whole.”(36 CCC 635).
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- The Pre-existing disability for SIF purposes must be existed at the time of the subsequent industrial injury occurred: Pursuant to Bachrach case (SIF v. IAC (Bachrach)) 147 Cal. App. 22 818 , the existence of a non-disabling pathological condition is not sufficient to justify entitlement to SIF benefits. Further according to Franklin v. WCAB (1978) 79 Cal. App.3rd 224, a retroactive prophylactic work restriction will not support SIF liability. Additionally, an SIF applicant cannot rely upon a retroactive assignment of disability in the absence of contemporaneous evidence to meet applicant’s burden of proof.
If your Workers Compensation claim is settled and you believe that you have a (SIBTF) Subsequent Injury Fund Claim,
Contact Rawa Law Group at 866-200-1212