Victoria Enriquez sustained industrial injury to her psyche while employed during a cumulative period ending November 30, 2004 by County of Santa Barbara.

A 2014 Opinion and Decision After Reconsideration found permanent disability of 60 percent, based on an AME who reported that applicant was unable to compete in the open labor market.. However, the AME apportioned 40 percent of applicant’s permanent disability to other factors reducing her disability to 60 percent.

After the issuance of the Decision After Reconsideration of July 18, 2014, Enriquez sought SIBTF benefits.

After submission of the SIBTF case in 2016, the WCJ issued an Order Vacating Submission and Ordering Further Discovery. “Specifically/’ wrote the WCJ in his Order, “the parties are to elicit an opinion from the AME, Dr. Plesons, whether Applicant had a preexisting labor disabling permanent disability, prior to the industrial injury.” At an August 2016 hearing, it was noted that “SIBTF will write letter to doctor.”

Nevertheless, despite the fact that the WCJ found that further development of the record was necessary, the fact that defendant was designated to contact Dr. Plesons, and the fact that applicant carries the burden of proof on the issue, no further evidence was procured or admitted into the record.

Ultimately the WCJ rendered a decision on an evidentiary record he had previously found to be inadequate. The SIBTF Petition for Reconsideration was granted, and the Findings of Fact and Order was rescinded in the panel decision of Enriquez v County of Santa Barbara.

On April 19, 2004, SB 899 went into effect. SB 899 contained far-reaching amendments to the California workers’ compensation system. Among these changes, former Labor Code sections 4663 and 4750 were repealed, and a new Labor Code section 4663 was enacted to now provide that “Apportionment of permanent disability shall be based on causation.”

Although SB 899 repealed the old apportionment statutes, Labor Code section 4751 governing SIBTF liability remained unaltered. Thus, even after SB 899, in order to qualify for SIBTF benefits, the employee must show that his or her disability was labor disabling prior to the subsequent industrial injury. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 619 (Appeals Board en banc).) “Accordingly, if an applicant’s non-industrial pathology causes apportionable permanent disability . . . then [SIBTF] benefits will not be payable under section 4751 unless the applicant demonstrates that the pathology was causing permanent disability prior to the subsequent industrial injury.”

The requirement for the existence of a prior “labor disabling” permanent disability under section 4751 is the same requirement that existed for apportionment of permanent disability under Labor Code section 4750 prior to the enactment of Senate Bill 899 (SB 899), effective April 19, 2004.

The finding that applicant had 40 percent disability apportionable to other factors pursuant to current Labor Code section 4663 “is in no way tantamount to a finding that applicant had 40 percent (or any) labor disabling permanent disability at the time of her industrial injury.” The WCJ must make a finding supported by substantial medical evidence that, at the time of the industrial injury, applicant had a labor disabling permanent disability.