Subsequent Injury Fund?

Saturday, August 26, 2006 | 0

The following column was originally a post in the WorkCompCentral Professional Forums. It has been edited and adapted for republication here.

By Jake Jacobsmeyer

Use of Subsequent Injury Fund does not undermine 4663/4664 but the decisions in Dykes and Nabors do render moot many SIF petitions as SIF will take all of an individual's impairments, industrial or not, and combine for a total rating. It the criterion of the statute is met (35% industrial or 5% on opposite and opposing member and the 70% threshold) the IW gets the value of the total disability from all causes less credit for payments made for the work injury and any prior disability awards and recoveries etc. (except for VA awards as I recall), including some reduction for SSD benefits on a pro-rata basis.

With Nabors/Dykes, the work injury is paying the combined value of the current injury with pre-existing awards for overlapping body parts so SIF does not have to. One of the arguments presented in support of the WCAB's original decision in Nabors, which was rejected by the appellate courts, was that the SIF paid the combined values so the IW could get the same result without tagging the employer for the entire cost. This was not quite true as there are credits and offsets and of course SIF requires the thresholds to be met. Some cases therefore do not quality. All that is moot as Nabors requires the employer to pay the combined value. The real benefits under SIF are not limited to pre-existing PD that would not be apportionable and to non-industrial conditions.

When I did applicant's work and had an SIF case I would get all the records available to look for non-industrial medical problems that predated the injury. If my client was hypertensive, had diabetes, poor vision and or poor hearing, all of that went into the mix. Interestingly, with the AMA guides a lot of those conditions will rate much higher than under the old schedule. I would look for the above conditions but also sexual disfuction, gastric issues (intake and output) and any other metabolic conditions that are ratable under AMA but were hardly even considered under the old schedule.

Public entities are getting hit very hard with claims for heart disease that under the old schedule would hardly be ratable at all but under AMA are generating 20-40% standard ratings for employees who have no limitation on activity and are able to perform their full duties as a public safety officer. Ratings for internal medicine claims can frequently rate 2-3 times higher under AMA than under the old schedule and do not overlap with orthopedic injuries at all. The same kind of ratings can potentially be very valuable in SIF.

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By attorney Richard "Jake" Jacobsmeyer. He is a partner in the firm Shaw, Jacobsmeyer, Crain & Claffey and can be reached at jakejacobsmeyer@shawlaw.org.

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