The changes proposed by the Gov. Gavin Newsom administration in the SIBTF trailer bill are going to have wide-ranging and serious effects, both on Subsequent Injuries Benefits Trust Fund claims and on the underlying industrial claim.

Arthur L. Johnson

Consider the following:

1. Medical legal evidence can be obtained only in the basic case, and there shall be no “SIBTF medical reports.” 

What that means is that all discovery (likely at the cost of the industrial carrier on the subsequent industrial injury) will have to occur in the basic case. All evidence of pre-existing disability, all evidence of preexisting labor disablement and all evidence of threshold will have to be obtained through medical-legal reporting by PQMEs or by treating doctor medical-legal reports.

The medical-legal costs (and defense costs) are going to rise exponentially for carriers in the basic case, with evidentiary preclusion as to development in the SIBTF case itself at a later date.

2. Preclusion of vocational evidence development in the SIBTF case.

The proposed trailer bill outlaws vocational evidence obtained during the SIBTF proceedings. Vocational evidence can be obtained only in the basic case. That means we are going to have far more vocational reports addressing both the preexisting and industrial disabilities in the basic case (the subsequent industrial injury).

And we will have more rebuttal, with vocational experts looking at work restrictions to determine which were preexisting and which are part of the subsequent industrial injury. And who is responsible for those work restrictions if they reach 100%, the industrial carrier or SIBTF? If both, what is the combination? 

3. QME evaluators and treating doctors will have to become far more knowledgeable about the SIBTF technical requirements.

This is because “thresholds” will have to be determined in the basic case, and "threshold" is a medically complex determination. Even more complex, with complicating language added in the proposed trailer bill as to the definition of threshold medical requirements and disability requirements.

4. In the past, we have had many doctors, AMEs and QMEs (very knowledgeable doctors) advise, “I don’t do SIBTF.” That may be no more.

This is because if they have to, they will be forced. And we, applicants' attorneys, will be taking their depositions. We will be presenting the SIBTF requirement and nuances, and demanding complicated and nuanced answers from the AMEs, QMEs and treating physicians.

Who pays for all this new medical, legal and vocational complexity? That remains to be seen. Likely the industrial carrier.

5. These cases are likely to drag on far, far longer.

At present, we have a cadre of SIBTF medical evaluators who are highly knowledgeable about the specific requirements for SIBTF cases. Training a whole new cadre of inexperienced doctors on SIBTF, now proposed to be legally required, is going to add untold complexity to the medical-legal process.

6. The evidentiary preclusions may be unconstitutional.

All parties have a constitutional due process right to present evidence and to present rebuttal evidence. These constitutional issues will take years of litigation before a precedent decision will issue.

Conclusion

All this is going to be highly necessary. Under Welcher Brodie, as that case now stands, the employer does not pay for what it causes. It pays as if there were no preexisting disability.

The benefit calculation now subtracts the preexisting apportioned disability from the overall disability, and the employer pays as if no preexisting disability existed. And yet, that is clearly contrary to medical evidence and actual fact.

For example, if the claimant has a prior lumbar disability that was rated at 50% 10 years ago and now has a new injury superimposed that causes total disability due to failed back syndrome, the employer pays 50% as if the prior 50% did not exist, and the SIBTF pays the difference between 50% and 100%. That is the sole reason SIBTF costs are going through the roof; SIBTF now pays for what the employer causes: the progression of disability. The difference between $290 permanent partial disability and the total disability maximum of $1,764.11 is immense.

If the SIBTF goes away, then the one who is going to pay is the injured worker — the one who is now unemployable and unemployed. If the employer does not pay for the 100% it causes, and SIBTF is not there to pay for the 100% caused by the combination of disabilities, then the employee receives his permanent partial disability rating at $290 a week, not at the TD rate for life, likely five times higher. And our injured workers are going to wind up on the street homeless or living with mom and dad, or son or daughter.

So, this SIBTF proposed trailer bill is a direct assault on the welfare of the most seriously disabled workers in California, those whose combined disabilities take them to 100% disability and keep them from working, keep them from maintaining their medical coverage and keep them from completing their pension funding.

But this may well come to be, as the proposals are in a trailer bill subject to no legislative discussion or debate. The carriers may regret what they wish for, with untold, immense future medical-legal costs superimposed on the already difficult medical-legal system we work in, with the requirement that all medical and all vocational evidence (SIBTF and basic case evidence) be developed in the basic case alone. That will likely happen at the expense of the industrial carrier. And these cases will be interminably delayed due to the added complexity being imposed by the new trailer bill.

This is a broad overview of the likely effects of the SIBTF's newly proposed trailer bill. The fine nuances of change are even more grand, more complicated, and will take more expertise in the handling of these cases by applicants' attorneys, defense attorneys, and SIBTF medical and vocational evaluators.

Previously, defense attorneys did not need to bother much with SIBTF, as those cases proceeded after the resolution of the basic case. That will be no more, and defense attorneys will become intimately involved in the medical and vocational workup — now all required to occur in the basic case — and SIBTF attorneys will be required to participate in the basic case, as the SIBTF case will of necessity need to be joined for a joint trial and joint decision. Typically, the SIBTF attorneys object to joinder, but that will be no more.

So, for the folks in the administration who are pushing this bill, be careful what you ask for. You may not like what you get.

Arthur L. Johnson is a founding attorney for Johnson Law Firm, a workers' compensation and Social Security disability law firm in San Jose. This opinion appears here with permission.