Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4751
Labor Code section 4751 requires a preexisting permanent disability and a subsequent injury for SIBTF benefits.
Applied to determine if applicant met preexisting disability requirement.
From the decision · page 3We first address whether the permanent disability from the 2004 specific injury preexisted
the cumulative trauma injury ending on April 20, 2009. Labor Code, 2 section 4751, requires that
there be a preexisting permanent disability and a subsequent injury. (§ 4751.) The date of the
preexisting permanent disability from the 2004 specific injury is either the date applicant became
permanent and stationary, which is May 11, 2009, or the date applicant was awarded with 23%
permanent disability, which is November 20, 2017. (Applicant Exhibit 17, Joint Findings of Fact
and Award dated November 20, 2017, § 3; Applicant Exhibit 18 Joint Opinion on Decision, p. 2.)
Labor Code section 5412
Date of injury for cumulative trauma injury is determined under Labor Code section 5412.
Applied to determine date of injury for cumulative trauma injury.
From the decision · page 3An injury may be either: (a) "specific," occurring as the result of one incident or
exposure which causes disability or need for medical treatment; or (b)
"cumulative," occurring as repetitive mentally or physically traumatic activities
extending over a period of time, the combined effect of which causes any
disability or need for medical treatment. The date of a cumulative injury shall
be the date determined under Section 5412. (§ 3208.1.)
Dow Chemical Co. v. Workers' Comp. Appeals Bd. (Quick) (1967) 67 Cal.2d 486
Dow Chemical Co. v. Workers' Comp. Appeals Bd. (Quick) (1967) 67 Cal.2d 486 establishes the date of injury for cumulative trauma as the last day of exposure or disability.
Cited to explain date of injury for cumulative trauma injury.
From the decision · page 4SIBTF cites to Dow Chemical Co. v. Workers' Comp. Appeals Bd. (Quick) (1967) 67
Cal.2d 486, 493 [32 Cal.Comp.Cases 431] for the proposition that the date of injury in a cumulative
trauma injury in a SIBTF case is the ending date of the cumulative trauma injury. (Answer, p.
8:11-16.) The Quick court stated:
Labor Code section 4751
Permanent disability from subsequent injury must meet 35% threshold under Labor Code section 4751.
Applied to assess if applicant met 35% threshold from subsequent injury.
From the decision · page 6Section 4751 requires that "the permanent disability resulting from the subsequent injury,
when considered alone and without regard to or adjustment for the occupation or the age of the
employee, is equal to 35 percent or more of [the] total [combined permanent disability]." (§ 4751.)
Bookout v. Workers' Comp. Appeals Bd. (1976) 62 Cal.App.3d 214
Permanent disability attributable to subsequent injury excludes apportionment (Bookout v. Workers' Comp. Appeals Bd. 1976).
Applied to exclude apportionment in calculating subsequent injury disability.
From the decision · page 6The court in Bookout v. Workers' Comp. Appeals Bd. (1976) 62 Cal.App.3d 214, 228 [41
Cal.Comp.Cases 595], held that the permanent disability attributable to applicant's subsequent
injury for the purpose of meeting the 35% threshold requirement under section 4751 excludes
Todd v. Subsequent Injuries Benefits Trust Fund (2020) 85 Cal.Comp.Cases 576
Applied to combine cervical spine and right thumb ratings for 35% threshold.
From the decision · page 7SIBTF is incorrect that the two body parts must be looked at separately in evaluating the
35% threshold requirement. (Answer, pp. 10:26-11:9.) The subsequent injury here is a single
cumulative trauma injury to two body parts, applicant's cervical spine and applicant' right thumb.
(Applicant Exhibit 17, Joint Findings and Award dated November 20, 2017; Applicant Exhibit 18,
Joint Opinion on Decision.) The two body parts must be combined per the CVC to determine the
permanent disability resulting from the subsequent cumulative trauma injury. (See Todd, supra,
85 Cal.Comp.Cases at p. 587.)