Andrew Glover, filed an Application for Subsequent Injuries Fund Benefits (“SIBTF”) on August 19, 2019, alleging a date of injury of September 2, 2001, as a professional athlete while working for the Oakland Raiders/New Orleans Saints. The underlying case for regular benefits had been resolved by Compromise and Release on October 8, 2008. In his SIBTF petition, he alleged injury to the subsequent injury to his head, neck, upper extremities, and lower trunk.

Glover therefore filed his application for SIBTF benefits, 11 years after his Compromise and release in the claim was approved, and 19 years after his original end date of injury.

The matter came to trial on the issue of Statute of limitations and the WCJ found that the original Compromise and Release, and its approval, constituted a finding of permanent disability for purposes of the Statute of limitations in SIBTF claims: that the applicant’s date of knowledge for purposes of SIBTF eligibility was no later than October 8, 2008; and that the filing of the application for SIBTF benefits after the date of knowledge was not made timely, as it was not a reasonable amount of time to wait to file.

Glover’s Petition for Reconsideration was granted in the panel decision of Glover v New Orleans Saints; SIBTF -ADJ916498 (October 2023).

There are four Supreme Court cases that provide guidance on the issue of timeliness of a SIBTF claim. (Subsequent Injuries Fund v. Workmens’ Comp. Appeals Bd. (Talcott) (1970) 2 Cal.3d 56, 65 [35 Cal.Comp.Cases 80];  Subsequent Injuries Fund v. Workmens’ Comp. Appeals Bd. (Pullum)(1970) 2 Cal.3d 78 [35 Cal.Comp.Cases 96]; Subsequent Injuries Fund v. Workmens’ Comp. Appeals Bd. (Woodburn) (1970) 2 Cal.3d 81 [35 Cal.Comp.Cases 98]; Subsequent Injuries Fund v. Workmens’ Comp. Appeals Bd. (Baca) (1970) 2 Cal.3d 74 [35 Cal.Comp.Cases 94].)

The Supreme Court in Talcott, the seminal case on this issue, provided that if applicant knew or could reasonably be deemed to know that there will be a substantial likelihood of entitlement to subsequent injuries benefits before the expiration of five years from the date of injury, then the limitation period to file a SIBTF claim is five years from the date of injury.

However, if applicant did not know and could not reasonably be deemed to know that there will be a substantial likelihood of entitlement to subsequent injuries benefits before the expiration of five years from the date of injury, then the limitation period to file a SIBTF claim is a reasonable time after applicant learns from the WCAB’s findings on the issue of permanent disability that SIBTF has probable liability.

The WCAB panel agreed with the WCJ that the second prong of the Talcott analysis applies here: whether applicant filed his SIBTF claim within a reasonable time after he learned from the WCAB’s findings on the issue of permanent disability that SIBTF has probable liability.

The WCJ opined that the 2008 Compromise and Release constitutes a finding of permanent disability because once a Compromise and Release is approved by the WCAB, it has the same force and effect as an award made after a full hearing.

The WCAB disagreed. “The Compromise and Release is not a finding on the issue of permanent disability. Paragraph 9 of the Compromise and Release specifically states that, “The parties wish to settle these matters to avoid the costs, hazards and delays of further litigation, and agree that a serious dispute exists as to the following issues (initial only those that apply).”

Lastly, the WCAB noted that “the WCJ failed to discuss applicant’s knowledge of SIBTF’s probable liability when there is no discussion of how applicant met the SIBTF eligibility thresholds found in Labor Code, section 4751 (Lab. Code, § 4751.)”

Accordingly, it granted reconsideration, rescinded the July 19, 2023 Findings and Order, and returned this matter to the trial level for further proceedings on the issue of timeliness of applicant’s SIBTF application.