ADJ9928682 · July 15, 2026

The WCAB found that the applicant did not provide substantial medical evidence to establish preexisting labor-disabling permanent partial disability before the subsequent injury, as required for SIBTF eligibility under Labor Code section 4751. The medical opinions of QME Dr. Lopez and QME Dr. Ambrose were found to be based on conjecture and lacking objective, contemporaneous evidence of pre-injury work restrictions or functional limitations affecting earning capacity. The Compromise and Release and Stipulations with Request for Award did not constitute judicial findings of permanent disability or labor-disabling impairment. Therefore, the WCAB rescinded the prior Findings and remanded for further proceedings to develop the record.

From the decision · page 1The WCJ found, in pertinent part, that applicant, who sustained a subsequent cumulative industrial injury to her neck, shoulders, and elbows during the period from June 10, 2014 to April 21, 2015, met the 5% threshold and had a preexisting labor-disabling condition, but was not entitled to Subsequent Injuries Benefits Trust Fund (SIBTF) benefits because she did not demonstrate her overall permanent disability was 70% or greater. Applicant claims that she met the criteria for SIBTF eligibility, asserting that her overall permanent disability is 100% when combining her subsequent injury with her preexisting spinal, knee, and psychiatric conditions, and alternatively argues that development of the record is appropriate rather than an outright denial of benefits. We have received an Answer from defendant. The WCJ filed a Report and Recommendation on Petition for Reconsideration (Report) recommending we deny reconsideration. We have considered the allegations in the Petition, the Answer, and the contents of the WCJ’s Report with respect thereto. Based on our review of the record and the reasons discussed below, as our Decision After Reconsideration, we rescind the Findings and return the matter to the trial level for further proceedings consistent with this decision.

Neither QME Dr. Ambrose nor QME Dr. Lopez provided substantial medical evidence of preexisting labor-disabling permanent partial disability before the subsequent injury of April 21, 2015.

Favours Defendant prevailed

Without substantial medical evidence of preexisting disability, applicant cannot meet SIBTF eligibility requirements under Labor Code section 4751.

From the decision · page 13[36 Cal.Comp.Cases 93].) Accordingly, the Board may reweigh the evidence and reach a decision different from the WCJ’s determination when other evidence of substantial probative value supports a contrary conclusion. (Lamb, supra, 11 Cal.3d at p. 281; Garza, supra, 3 Cal.2d at pp. 318-319.) In the present case, the opinions of QME Dr. Lopez and QME Dr. Ambrose both fail to constitute substantial medical evidence sufficient to establish the preexisting permanent partial disability required for SIBTF eligibility under section 4751.

Diagnosed cumulative occupational trauma and multiple prior work-related injuries affecting cervical spine, shoulders, elbows, and right wrist; concluded continuous injury from June 10, 2014 to April 21, 2015 with various musculoskeletal and nerve-related conditions compounded by successive injuries.

From the decision · page 2Fishman, after evaluating applicant, took a history that, after her reassignment from a supervisory role to a quality control inspector in summer 2014, she began performing more physically demanding duties and, within about two weeks, developed right elbow pain followed by left elbow pain. Her symptoms progressively worsened to include neck pain, bilateral elbow and forearm numbness and tingling, especially in the small and ring fingers, and increasing bilateral shoulder pain. (App. Ex. 1, p. 3.) AME Dr. Fishman’s diagnostic impressions identified a pattern of cumulative occupational trauma and multiple prior work-related injuries affecting the cervical spine, shoulders, elbows, and right wrist. He concluded that applicant sustained a continuous injury from June 10, 2014 through April 21, 2015. This included reaggravation of a cervical sprain and strain with ongoing myofascial pain, bilateral

Assigned 15% WPI to preexisting Major Depressive Disorder and Generalized Anxiety Disorder based on self-reported treatment and screening scores, but failed to demonstrate permanent impairment interfering with work duties before April 21, 2015; conclusions found to rest on conjecture without objective evidence.

Lacked objective evidence of pre-injury work restrictions or functional limitations affecting earning capacity; conclusions based on conjecture.

From the decision · page 14earning capacity or prevented her from performing full-duty work as a quality-control inspector through April 21, 2015. Furthermore, QME Dr. Ambrose’s attempt to impose preexisting work restrictions for the cervical spine, thoracic spine, lumbar spine and knees retroactively fails the legal standard for SIBTF eligibility because he formulates these limitations years after the fact without providing any contemporaneous, objective evidence that they impaired applicant’s earning capacity before April 21, 2015. Because QME Dr. Ambrose bases his preexisting restrictions on his current post-injury examination rather than objective, pre-injury functional evaluations or actual pre- injury work restrictions, his conclusions rest on conjecture. QME Dr. Lopez’s August 19, 2022 report and September 29, 2022 supplemental report fare no better. He assigns 15% WPI to a preexisting Major Depressive Disorder and Generalized Anxiety Disorder based primarily on applicant’s self-reported treatment beginning in 2011 and scattered PHQ-9 and GAD-7 screening scores from late 2014 and early 2015. These screening instruments, standing alone, do not demonstrate permanent impairment that actually interfered with applicant’s ability to perform her regular work duties before April 21, 2015.

Assessed work restrictions for subsequent injury and preexisting conditions, concluding permanent total disability; apportioned impairments between preexisting and subsequent injuries; however, preexisting restrictions imposed retroactively without contemporaneous objective evidence, thus conclusions rest on conjecture and fail legal standard for SIBTF eligibility.

Preexisting work restrictions imposed retroactively without contemporaneous objective evidence; conclusions rest on conjecture and fail legal standard for SIBTF eligibility.

From the decision · page 14earning capacity or prevented her from performing full-duty work as a quality-control inspector through April 21, 2015. Furthermore, QME Dr. Ambrose’s attempt to impose preexisting work restrictions for the cervical spine, thoracic spine, lumbar spine and knees retroactively fails the legal standard for SIBTF eligibility because he formulates these limitations years after the fact without providing any contemporaneous, objective evidence that they impaired applicant’s earning capacity before April 21, 2015. Because QME Dr. Ambrose bases his preexisting restrictions on his current post-injury examination rather than objective, pre-injury functional evaluations or actual pre- injury work restrictions, his conclusions rest on conjecture. QME Dr. Lopez’s August 19, 2022 report and September 29, 2022 supplemental report fare no better. He assigns 15% WPI to a preexisting Major Depressive Disorder and Generalized Anxiety Disorder based primarily on applicant’s self-reported treatment beginning in 2011 and scattered PHQ-9 and GAD-7 screening scores from late 2014 and early 2015. These screening instruments, standing alone, do not demonstrate permanent impairment that actually interfered with applicant’s ability to perform her regular work duties before April 21, 2015.

California Labor Code section 4751

Labor Code section 4751

Defines eligibility criteria for SIBTF benefits requiring preexisting labor-disabling permanent partial disability and combined permanent disability of 70% or more.

From the decision · page 10SIBTF provides benefits to employees who establish that at the time of an industrial injury, they suffered from preexisting permanent partial disability from a prior injury, which results in greater overall permanent disability than from the subsequent injury alone. The purpose of the statute is to encourage the employment of the disabled as part of a “complete system of [workers’] compensation contemplated by our Constitution.” (Subsequent Injuries Fund v. I.A.C. (Patterson) (1952) 39 Cal.2d 83, 86 [17 Cal.Comp.Cases 142]; Ferguson v. I.A.C., 50 Cal.2d 469, 475 [23 Cal.Comp.Cases 108]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 619 (Appeals Board en banc).) Labor Code section 4751 2 provides that if an employee with a preexisting permanent partial disability suffers a new compensable injury that increases their total disability beyond what the new injury alone would cause, and the combined permanent disability equals 70% or more, the employee is entitled to additional compensation for the portion of disability exceeding the last injury.

Applicant continued working full duty until the day the subsequent cumulative trauma claim accrued, indicating no pre-injury work restrictions or functional limitations affecting job performance.