Fingering Subsequent Injury Fund for Liability
California Workers’ Compensation provides a fund for serious subsequent injuries where a previous injury combines with a more recent one to cause permanent disability (PD). (See Labor Code section 4751)
Subsequent Injury Fund’s (SIF) coffers present an additional pocket for the injured worker.
In the case of Becerra v. WCAB (2011), an applicant filed a claim for a 1999 injury to his back and psyche. He already had a past injury that resulted in the amputation of one joint of the right index finger. The parties used Agreed Medical Evaluators for both injuries, resulting in 67% PD for the back and 44% PD for the psyche.
Under the 1997 rating schedule (see page 7-16), these two values combine to 86% permanent disability. The WCJ did not find applicant 100% permanently disabled on medical grounds alone.
The dueling vocational experts did not find the finger injury a factor in applicant’s lost ability to compete in the labor market. Applicant was found 100% permanently disabled based on the medical and vocational evidence, attributed solely to the 1999 injury.
After settling his case in 2009, applicant filed a claim for SIF benefits, claiming that the amputated finger joint and back injury combined to create a greater disability – the back/psyche injury of 1999 did not make him 100% disabled, but rather 97% permanently disabled (the finger, as the theory went, did the rest).
The WCJ rejected applicant’s theory, reasoning that nothing in the record suggested any portion of applicant’s permanent disability, or vocational rehabilitation analysis, came from the missing finger joint.
The WCJ found for SIF, the Workers’ Compensation Appeals Board denied reconsideration. The Court of Appeals’ response? Writ of review denied.
Defendant didn’t benefit much from SIFs involvement in this case. However, if you have an applicant with a past injury, bringing SIF in as a secondary target should always be explored. If nothing else, more settlement money in the room means less settlement money out of your pocket!