A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management

 

How To Do It: Articles, Interviews &
Practice Tips

Articles emphasizing practical knowledge you can't find in practice guides

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Profiles of people who changed workers’ compensation law.

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Letters to the Editors

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• Warren Schneider
• Marjory Harris


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HARRIS: You are well known for your
ability to find Subsequent Injuries Fund
cases. I've also heard that you are known
for taking these cases to trial. Could you
share some of your techniques for finding
and developing SIF cases?


TREASTER: I take a detailed medical
history from the client in a face to face
interview. I ask about military service
and/or military disability ratings. I look for
hearing aids and check into learning
disabilities.

I ask about childhood illnesses and/or
birth defects, such as polio, post-polio
syndrome, and autism.

I check with the WCAB (just as the
insurance companies do) for pre-existing
workers' compensation cases.

Social Security earnings records (which
go back 20 years) may indicate pre-existing
disability.


Labor Code §4751
If an employee who is permanently partially disabled receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous disability or impairment is a permanent disability equal to 70 percent or more of total, he shall be paid in addition to the compensation due under this code for the permanent partial disability caused by the last injury compensation for the remainder of the combined permanent disability existing after the last injury as provided in this article; provided, that either (a) the previous disability or impairment affected a hand, an arm, a foot, a leg, or an eye, and the permanent disability resulting from the subsequent injury affects the opposite and corresponding member, and such latter permanent disability, when considered alone and without regard to, or adjustment for, the occupation or age of the employee, is equal to 5 percent or more of total, or (b) 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 total.

 


HARRIS: SIF requires that a pre-existing
condition actually be labor-disabling
before the occurrence of the subsequent
work injury. Does SB 899’s change to
Labor Code §4663 and the Escobedo
decision have much impact on SIF cases,
or is the real problem that the AMA
Guides-based ratings are so low that SIF
cases may become extinct?


TREASTER: The new law allows
apportionment to non-disabling conditions.
Subsequent Injury Fund legislation
requires actual pre-existing disability.
And the AMA Guides make it difficult to reach the threshold for Subsequent
Injuries Fund liability, with their low WPI
for backs and other orthopedic injuries.
 

In the en banc decision, Escobedo v. Marshalls, 70 CCC 604 (2005), the Board found that under SB 899, "apportionment now can be based on non-industrial pathology, if it can be demonstrated by substantial medical evidence that the non-industrial pathology has caused permanent disability" (page 16) and summarized the interplay between Labor Code 4751 and 4663: "Applicant asserts that because SB 899 did not amend section 4751, relating to benefits payable by the Subsequent Injuries Benefits Trust Fund (“SIF”), this reflects a legislative intent that pathology is not one of the “other factors” upon which apportionment to non-industrial causes can be based. In essence, applicant asserts that if apportionment based on pathology were allowed, this would cause a flood of SIF benefit claims to be filed under section 4751. This is because, in applicant’s view, apportionment to pathology would decrease the percentage of disability for which the employer is responsible, while the overall level of disability would remain unchanged, leaving the SIF responsible for the difference. We disagree." (at page 17)
"…if an applicant’s non-industrial pathology causes apportionable permanent disability under section 4663 or 4664(a), then SIF benefits will not be payable under section 4751 unless the applicant demonstrates that the pathology was causing permanent disability prior to the subsequent industrial injury. Although this may mean that, in some cases, an injured employee will not get either permanent disability benefits or SIF benefits for the apportioned disability, this is not a major change from pre-SB 899 law, which held that an injured employee was not entitled to SIF benefits based on an asymptomatic disease process that was not labor disabling prior to the industrial injury. [citations omitted] In any event, it is an issue within the Legislature’s domain, not ours." (at pages 18-19)

 


HARRIS: Will SIF allow ratings based on
diminished future earning capacity
(DFEC) in lieu of those based on the AMA
Guides and new Permanent Disability
Rating Schedule? Any plans to litigate
this issue?

TREASTER:
Interesting question. I'm sure someone will litigate this.


For Mr. Treaster’s resume, click here

Eugene C. Treaster, Esq.
3838 Watt Avenue, Bldg F-600
Sacramento, CA 95821
(916) 444-2622



 

To learn more about diminished future earning capacity (DFEC) as an alternative rating method, click here.

 

 

The Subsequent Injuries Fund (SIF)
Post-SB 899

Eugene C. Treaster, Esq. is known for his expertise in Subsequent Injuries Fund (SIF) cases. In 2005, he received the State Bar of California Workers' Compensation Section’s Lifetime Achievement Award. In this interview with Marjory Harris, he shares practice tips for
spotting a SIF case.
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> SIF & SB 899
> Apportionment Fictions