Francisco, Ray

Applicant Ray Francisco, a splicing technician for Pacific Bell, sustained a back injury on August 15, 2018, and sought Subsequent Injuries Benefits Trust Fund (SIBTF) benefits based on a prior 1990 industrial back injury. The WCJ denied benefits, finding the subsequent injury failed to meet the 35% threshold under Labor Code section 4751 after the WCJ accepted QME Dr. Cremata's apportionment of 5% WPI to the prior 1990 injury, reducing the subsequent disability to 32%. The Appeals Board granted reconsideration, holding that under Bookout v. WCAB, apportionment must be excluded when calculating whether the subsequent injury alone meets the 35% threshold, even where the prior disability affected the same body part. Recalculating, the Board found the subsequent disability equals 39% (28% WPI x 1.4 FEC factor), meeting the 35% threshold under subsection (b), and also found the bilateral lower extremity pre-existing disability satisfied the 5% opposite-and-corresponding member threshold under subsection (a). The Board rescinded the F&O, substituted findings establishing both thresholds were met, deferred the remaining 4751 requirements (combined disability greater than subsequent alone; combined disability of 70% or more), and returned the matter to the trial level.