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In the new panel decision of Harris v Numac Company, SCIF, SIBTF the WCAB went to great lengths elaborating on the requirements for SIBTF eligibility.

In 2005, George Harris fell ill with pneumonia after working on an AC unit in wet and cold weather. He was later diagnosed with stage II sarcoidosis.

On April 3, 2015, Harris filed an Application for Subsequent Injuries Fund Benefits, claiming he had a 2003 pre-existing disability to his back.

On April 23, 2015, the WCJ issued a Findings of Fact, Awards and Order finding that applicant sustained industrial injury on January 8, 2015 to his lungs/pulmonary, skin (sarcoidosis) and psyche, which caused 65% permanent disability.

The parties then went to trial on the following two issues: (1) SIBTF, and (2) the statute of limitations.

The WCJ issued a Findings and Award finding that applicant’s current injury resulted in 48% permanent disability when considered alone and without adjustment to applicant’s occupation or age. The WCJ concluded that 48% permanent disability satisfied the 35% threshold under section 4751, subdivision (b), and proceeded to add 38% from a prior permanent disability rating from applicant’s 1999 and 2003 back injuries. This addition resulted in 86% permanent disability, from which the WCJ then added 34%, which is the non-industrial portion of applicant’s current respiratory disorder that the WCJ reasoned was pre-existing.

As a result, the WCJ found that applicant’s combined pre-existing and current disabilities resulted in 100% permanent disability.

SIBTF’s Petition for Reconsideration raises three issues: (1) whether applicant’s prior 34% lung impairment is labor disabling, (2) whether the WCJ improperly added the prior disabilities to the current disability, and (3) whether applicant’s SIBTF claim is barred by the statute of limitations.

Based on Ferguson and Escobedo, the WCAB concluded that applicant’s sarcoidosis was not labor disabling prior to his industrial pneumonia. Applicant was asymptomatic and had no disability prior to the pneumonia. “This recognizes that the patient apparently had dormant sarcoidosis of non-industrial origin which was not symptomatic and causing no disability prior to the pneumonia, which had an industrial component, and that the patient had no disability prior to the reactivation of sarcoidosis precipitated by the episode of pneumonia.”

Thus, the WCJ erred in adding the 34% non-industrial dormant sarcoidosis in calculating applicant’s combined disability for purposes of SIBTF’s benefits.

However, the WCJ incorrectly determined the permanent disabilities that must be added for SIBTF benefit entitlement. It is derived by adding the 65% subsequent permanent disability, consisting of the three current impairments of respiratory disorder, contact dermatitis and arousal, and the 38% of pre-existing permanent disability in applicant’s back, resulting in 100% permanent disability.

There is no statutory time limit to apply for SIBTF benefits.  It must be filed within a reasonable time after learning from the board’s findings on the issue of permanent disability that the Fund has probable liability.