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  • Writer's pictureThe Carlo Law Group

How SIF awards relate to SSDI benefits

Under POMS Section: DI 52120.030, the SSA sets out their rules for Offsets In SIF cases. Under this section, the basic WC payment is offsettable, however, the additional payments which are made from the Subsequent Injuries Fund are not offsettable. Reverse offset applies to SIF payments.

SIF Credits

SIF Credits are governed by California Labor Code Section 4753 which provides:

California Labor Code Section 4753

Such additional compensation is not in addition to but shall be reduced to the extent of any monetary payments received by the employee, from any source whatsoever, for or on account of such preexisting disability or impairment, except as to payments being made to the employee or to which he is entitled as a pension or other compensation for disability incurred in service in the armed forces of the United States, and except as to payments being made to him or to which he is entitled as assistance under the provisions of Chapter 2 (commencing with Section 11200), Chapter 3 (commencing with Section 12000), Chapter 4 (commencing with Section 12500), Chapter 5 (commencing with Section 13000), or Chapter 6 (commencing with Section 13500) of Part 3, or Part 5 (commencing with Section 17000),of Division 9 of the Welfare and Institutions Code, and excluding from such monetary payments received by the employee for or on account of such preexisting disability or impairment a sum equal to all sums reasonably and necessarily expended by the employee for or on account of attorney's fees, costs and expenses incidental to the recovery of such monetary payments. All cases under this section and under Section 4751 shall be governed by the terms of this section and Section 4751 as in effect on the date of the particular subsequent injury. SIF is not entitled to Credit for Veteran's Benefits//Service Connected Disabilities. In Webineer v. WCAB (SIF) (1975) 40 CCC 774 -, the Subsequent Injuries Fund was entitled to a credit for payments made to an injured employee under a Veterans Administration pension and as Social Security disability benefits only to the extent to which these payments were for a non-service connected disability which pre-existed the industrial injury. [See also Hanna, California Law of Employee Injuries and Workmen's Compensation, Vol. 1, § 9.05[4][a].]

SIF is entitled to Credit for SSDI benefits for the percentage of SSDI that is related to the pre-existing PD. The formula is (100%-Comp. PD= % x SSDI benefits = offset). The SSDI credit will end once the worker reaches retirement age and the SSDI benefit converts to retirement benefits. Calculating the Social Security credit can be rather complex. To properly assess the credit four things need to be known: 1. The date of entitlement to SSDI benefits and the beginning date of these benefits; 2. Dates and amount of changes in monthly SSDI benefits after deductions; 3.If SSDI benefits have been terminated, the date reason for the termination must be known; and finally 4 The date of entitlement of Retirement. This information should be obtained from the Social Security Administration. We have seen the information provided on SSA form WNPSC-3070E (9/07).

Statute of Limitations for SIBTF Cases

There is no statute of limitations that directly applies to SIBTF cases. The SIBTF application must be filed within a reasonable time after an applicant knows or reasonably should know that there is a substantial likelihood that he or she has a claim for such benefits. If the SIBTF claim is filed within the five year period under Labor Code Section 5410, it is timely filed (although the five year limitation period described in section 5410 does not apply to claims for SIBTF benefits).The issue is more complex when the SIBTF application is filed more than 5 years after the date of  injury. SIBTF cases are often very complex and the filing of an SIBTF application within a reasonable time of a WCAB finding on the issue of permanent disability will be timely if your case is complex and the applicant could not reasonably know there was a substantial likelihood that there was a viable SIF claim before the 5 year mark in LC 5410. The California Supreme Court issued a number of dispositions in companion cases addressing this issue. It is important to read Subsequent Injuries Fund v. WCAB (Talcott) (1970) 2 Cal.3d 56 [35 CCC 80] together with Subsequent Injuries Fund v. WCAB (Baca) (1970) 2 Cal.3d 74 [35 CCC 94]. The Talcott court held: "That where, prior to the expiration of five years form the date of injury, an applicant does not know and could not reasonably be deemed to know that there will be substantial likelihood he will become entitled to subsequent injuries benefits, his application against the Fund will not be barred - even if he has applied for normal benefits against his employer - if he filed a proceeding against the Fund within a reasonable time after he learns from the Board's findings on the issue of permanent disability that the Fund has probable liability.". In Baca, the SIF claim was barred as there was a Petition to Reopen (and thus a WCAB finding on PD) and the applicant did not file the SIF case within a reasonable time of the WCAB finding on PD. If there is a petition to reopen filed and there is any chance of an SIF case, then the SIF case should be filed at the time of the Petition to Reopen or certainly within the 5 year period under LC 5410 or it risks being barred under Baca.


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