Ybarra v. Workers' Compensation Appeals Board

Opinion

BOLAND, J. Summary

Petitioner seeks review of a decision by the Workers’ Compensation Appeals Board (WCAB), which adopted the recommendation of a workers’ [989]compensation administrative law judge allowing a reduction of petitioner’s workers’ compensation award by the amount of his disability retirement pension. We conclude the WCAB decision was erroneous inasmuch as petitioner’s disability retirement pension was based solely upon his work-related orthopedic injuries and was unrelated to the workers’ compensation award for a preexisting hypertension and gastrointestinal condition.

Factual and Procedural Background

This petition brought by former Los Angeles County Deputy Sheriff Raymond Ybarra involves two claims for workers’ compensation benefits. The first claim was for hypertension and for cumulative trauma to petitioner’s gastrointestinal system that occurred from 1983 to 1994. The second claim was for a work-related injury to his shoulder and knees occurring in 1997. Petitioner was awarded benefits for each of his injuries. His preexisting condition was assigned a 41 percent disability, while his subsequent orthopedic injury was deemed a 61 percent disability.

Following the award, petitioner applied for a disability pension from the Los Angeles County Employees Retirement Association (LACERA). He asserted he was permanently disabled from resuming his position at the sheriffs department due to his shoulder and knee injuries and to his hypertension and gastrointestinal condition. An orthopedic surgeon selected by LACERA, Stanley G. Robboy, M.D., examined petitioner and concluded he was permanently disabled from resuming his employment with the county. Petitioner thereafter was granted a work-related disability pension based on Dr. Robboy’s orthopedic evaluation.1

After he was granted a disability pension, petitioner filed an application with the Subsequent Injuries Fund (SIF) for additional benefits. Under Labor Code section 4751, SIF is authorized to pay for the amount of an employee’s disability over the workers’ compensation insurance payment when an employee has a preexisting nonindustrial or industrial disability and a subsequent industrial disability of at least 35 percent, which combine to make the employee 70 percent or more disabled. Petitioner contended his work-related orthopedic injury, combined with his preexisting condition, qualified him for SIF benefits with an overall disability of 81 percent.2