The Carlo Law Group
The Pre-existing Disability
Updated: Oct 4, 2018
As quoted in Escobedo v. Marshalls (2005) 70 CCC 604, 19 [en banc], "...the chief requirement for SIF benefits is that the condition must have been 'labor disabling' prior to the occurrence of the subsequent industrial injury. (Ferguson v. Industrial Acc. Com. (1958) 50 Cal.2d 469, 477 [326 P.2d 145]23 CCC 108]; Franklin v. WCAB 79 Cal.App.3d at pp. 237-238.)"
The Pre-existing disability for SIF purposes must have been present at the time of the subsequent industrial injury. Under the 1957 Bachrach case (SIF v. IAC (Bachrach)) 147 Cal. App. 22 818 , the existence of a non-disabling pathological condition is not sufficient to justify entitlement to SIF benefits. And per Franklin v. WCAB (1978) 79 Cal. App.3rd 224, a retroactive prophylactic work restriction will not support SIF liability. Further an SIF applicant cannot rely upon a retroactive assignment of disability in the absence of contemporaneous evidence to meet applicant's burden of proof (see opinion and order denying petition for reconsideration in ADJ3447817(SJO 0260464).
The pre-existing condition must have been labor disabling, but that has been defined by the Courts as any condition that would be ratable if it had been caused by an industrial injury. To be entitled to SIBTF benefits, applicant's prior permanent disability need not have caused actual earnings loss; it must simply be a disability for which partial permanent could be made if it were industrial. In Brown v.WCAB & SIF 36 CCC 627 (1971), at page 9 of the Lexis cite, the Court stated: "Although the prior disability need not be reflected in the form of loss of earnings, if it is not, it must be of a kind upon which an award for partial permanent disabilities could be made had it been industrially caused. This is necessary to distinguish it from a "lighting up" aggravation, or acceleration of the pre-existing physical condition where the employer is to be held liable for the whole."(36 CCC 635). Further, as the Court of Appeal stated in Brown v. WCAB (1971) 20 Cal.App.3d 903, 914-915: "Although the prior disability need not be reflected in the form of loss of earnings, if it is not, it must be the kind upon which an award for partial permanent disabilites could be made had it been industrially caused.". In addition, as the California Supreme Court stated in Ferguson v. Ind. Acc. Comm., (1958) 50 Cal. 2d 469, 477-478 "As commented in Larson's workers compensation law, the prior injury, under most statues should be one which, if industrial, would be independently capable of supporting an award. It need not, of course, be reflected in actual disability in the form of loss of earnings. [As this court has already heald in Smith v. IAC(1955) 44 Cal. 2d 364 at 367, bu tif it is not, it should be at least of a kind which would ground an award of permanent partial disability]." Finally, "The pre-existing disability need not have interfered with the employee's ability to work at his employment in the particular field in which he was working at the time of the subsequent injury (SIF v. IAC (Allen), supra, 56, Cal.2d 842, 845-846."
However, a prior disability does not have to be permanent and stationary or at an MMI status at the time of a subsequent injury to qualify as a pre-existing disability. This was directly addressed by the appellate court in Dhalbeck v. IAC 135 Cal. App.2d 394 (1955). In Dhalbeck the WCAB denied SIF liability because a previous burn injury was not P&S at the time of a subsequent work injury. That decision was overturned and the court noted that the WCAB finding would exclude any possibility of the burns ever becoming the basis of an award under LC 4751 on the narrow ground that it was not P&S at the time of the subsequent injury. The appellate court noted that the statute does not use the word stationary. They state that the statute contains no language suggesting a necessity of stationary status of a prior disability in order to form the basis of a subsequent injury award, nor does it imply the necessity of any such condition at the time of the later injury.
Current AMA ratings under the 2005 PDRS will satisfy the pre-existing PD requirement as the 2005 schedule for rating permanent disability is prima facie evidence of the percentage of permanent disability which must be followed unless it has been successfully rebutted. (Almarez/Guzman II 74 Cal.Comp. Cases at 1103-1104; affirmed Milpitas Unified School District v. WCAB (2010) 187 Cal.Ap. 4th 808). Thus if the applicant shows a disability under the AMA guides, SIBFT may choose to offer evidence to rebut the rating under the AMA guides. However, in all cases the applicant carries the burden to establish that prior to the subsequent injury the applicant had a pre-existing labor disabling condition upon which an award of permanent disability could have been based.
In the case of multiple prior WCAB awards of permanent disability, the prior awards are simply added without dilution through the use of either the Multiple Disabilities Table (MDT) from the 1997 PDRS or the Combined Values Chart (CVC) from the 2005 PDRS. Labor Code Section 4751 refers to "combined disability, and ordinarily the MDT and the CVC are used to combine disabilities. However neither applies where there are multiple disabilities. The MDT and CVC are both only applicable to combine disabilities from one injury to multiple body parts of the body in order to avoid "pyramiding" and to avoid exceeding the 100% limit for one injury. This concept is discussed in the 5/18/11 Notice of Intention to Recind WCJ's Decision and Return Matter to Trial Level for Further Development of Medical Record in ADJ3143756//ADJ317043 signed by Ronnie G. Caplane with Alfonso J. Moresi and Frank M. Brass concurring.