The Carlo Law Group
The 5% "Opposite and Corresponding" Member Requirement
Updated: Oct 4, 2018
For the 5% opposite and corresponding member criteria, the subsequent injury must only affect the opposite and corresponding member; it need not injure that member directly. This was detailed in the case of Hard v. WCAB (1974) 2 CWCR 48. In the Hard case the applicant had lost his left leg prior to the industrial injury. The industrial injury involved a back injury that caused problems into the applicant's right leg. The WCAB panel held "applicant qualifies for subsequent injuries fund benefits because the back injury affected the right leg which is the opposite and corresponding member to the previously impaired left leg." See also: Gillispie v. Plastech (SIBTF) (2010) 38 CWCR 304 (WCAB) wherein the WCAB held that LC Section 4751 requires only that the subsequent injury “affect the opposite and corresponding member” (such as radicular sx’s in the leg as result of a back injury); it does not require that the opposite member have pathology or be injured.
The "Opposite and Corresponding" requirement is not limited to extremities. In SIF v. IAC (Hanson) (1963) 217 Cal. App. 2d 322, on May 28, 1959, the applicant, Bruce S. Hanson, was injured in an automobile accident. The major effect of this industrial injury was to accelerate an existing diabetic retinitis to produce blindness of the right eye. Prior to the injury and as a result of the same disease process, applicant had already suffered practically complete loss of vision in the left eye. Here the eye injuries were Opposite and Corresponding members. A similar case was SIF v. IAC (Patterson) 1952 39 Cal.2d 83. In Patterson the subsequent industrial right eye injury rated at 26% PD. When combined with the pre-existing left eye injury, SIF liability was present.
The 5% disability to the opposite and corresponding member does not have to be completely within the injured member. For example, if the subsequent industrial injury involves the neck and arm, then the arm injury need not rate 5% as long as the neck combined with the arm combine to produce a 5% disability. In addition to not needing a subsequent injury causing a 5% disability in the opposite and corresponding member, the subsequent injury need only affect the opposite and corresponding member and cause an overall disability of 5% or more. SIF v. WCAB(Post) (1976) 41 CCC 436.
The opposite and corresponding member does not have to be the identical body part. In SIF v. WCAB (Smith) (1954) 19CCC158 the First District Court of Appeal found SIF liability when a subsequent right finger injury of 5 1/4% (loss of the distal phalanx of major little finger) was combined with a pre-existing left shoulder injury. Thus a Finger injury on one side of the body is opposite and corresponding to a shoulder injury on the other side of the body.
The 35% threshold
The 35% threshold is calculated before adjustment for occupation and age. The DFEC modifier must also be factored in when determining the rating of the subsequent injury before adjustment for occupation and age. The plain and unambiguous language of LC 4751 excludes only adjustment for age and occupation. Since a WPI determination does not consider work disablement, and only considers the impact of an injury on activities of daily living, for the permanent disability determination in LC 4751 to be relevant to work disablement, the DFEC adjustment must be included. There are conflicting panel decisions from the WCAB as to whether the DFEC modifier is considered in the 35% threshold. Khandikian vs. SIBTF (2015) ADJ9150217 (Van Nuys) states that you do consider the DFEC in determining whether the 35% threshold is met, whereas a WCAB Panel in Malen v. Kitchen Works (2011) 2011 Cal.Wrk.Comp. P.D. LEXIS 84 approved the determination that when calculating the permanent disability from a subsequent injury, the industrial disability must be considered before adjustment for DFEC.
The 35% threshold should include the adjustment for the 1.4 modifier. Section 4751 (b) requires the WCAB to consider permanent disability "...alone and without regard to or adjustment for the occupation or the age of the employee." Under the doctrine of expressio unius est exclusio alterius, absent a discernable and contrary legislative intent the courts ordinarily interpret the expression of one thing in a statute to imply the exclusion of others. (In re J.W. (2002) 29 Cal. 4th 200, 209). Section 4751 allows for adjustment by the 1.4 modified under section 4660.1 as the legislature expressly excluded adjustment for age and occupation only. The expressed exclusion of only age and occupation adjustments implies an inclusion of the 1.4 modifier. Furthermore, "[t]he Legislature is presumed to be aware of all laws in existence when it passes or amends a statute. [Citations.]. The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended. [Citations]" (In re Greg F. 55 Cal. 4th 393, 407 (quotations and citations omitted). The Legislature created the 1.4 modifier in 2012, but did not amend section 4751 at the same time to exclude the modifier from the consideration of permanent disability. Thus the Legislature intended to exclude only the age and occupation adjustments when considering disability alone.
A new permanent disability statute took effect on January 1, 2013. LC 4660.1 (a) states "In determining the percentages of permanent partial or permanent total disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of injury." Thus for injuries occurring on or after 2013, permanent disability, when considered alone and without regard to age or occupation, is solely based on "the nature of the physical injury or disfigurement."
LC Section 4660.1 (b) specifically defines the "nature of the physical injury or disfigurement" as follows: "For purposes of this section, the "nature of the physical injury or disfigurement" shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) with the employee's whole person impairment, as provided in the Guides, multiplied by an adjustment factor of 1.4". For injuries on or after January 1, 2013, the "nature of the physical injury or disfigurement" is applicant's AMA Guides rating multiplied by 1.4. This is the permanent disability "when considered alone" for purposes of LC Section 4751. Because the Legislature created the 1.4 modifier in 2013, but did not amend section 4751 at the same time to exclude that modifier from the consideration of permanent disability "when considered alone", the legislature intended to exclude only the age and occupation adjustments when considering disability alone.