Key Takeaways from “The Pathway Forward in SB 171“

Presented by Dr. Michael Newman and Dr. Ramin Shiva on 09/17/26
Santa Clara County Workers’ Compensation Attorneys Association
San Jose, CA

The Big Picture

The overarching theme of the presentation was that SB 171 has fundamentally changed how practitioners must approach SIBTF claims, with a particular emphasis on preserving medical-legal evidence before the underlying subsequent injury case is resolved. Presenters emphasized that the restrictions on SIBTF claims appear very real and are largely focused on limiting access to medical records and post-settlement discovery.

1. Discovery Must Be Developed Early

One of the most significant takeaways was that after a subsequent injury (SII) case is settled or adjudicated, access to new records may be substantially limited for purposes of a SIBTF claim.

The presenters noted that the regulations focus on medical records that were “not in existence” at the time the subsequent injury was adjudicated. This places tremendous importance on obtaining the appropriate medical-legal evaluations and developing a complete evidentiary record before resolution of the underlying claim.

Practical Implication

• Build the SIBTF case while the SII case is still active.
• Do not assume additional discovery will be available later.
• Obtain vocational and specialty evaluations early.

2. Existing Medical Records Can Be Resurrected

While new evidence may face hurdles after adjudication, records that were already in existence or referenced during the initial QME process may still be utilized later in a SIBTF claim.

The discussion suggested that records are not necessarily lost simply because the subsequent injury case has settled. If they were part of the original evidentiary landscape, there may still be pathways to bring them forward.

3. Who Can Resurrect Medical Evidence?

The presenters discussed several mechanisms through which records may be revived or relied upon in a SIBTF claim.

Potential sources include:

• The QME
• The AME
• The Primary Treating Physician (PTP)
• A physician nominated by the PTP to address medical-legal issues

This was identified as a potentially important strategy for preserving and utilizing relevant medical evidence after resolution of the underlying injury claim.

4. Name the Right Physician in Settlement Documents

A recurring recommendation was to be thoughtful about which evaluating physician is identified in settlement documents.

If a physician’s report forms the basis for settlement and that physician is specifically referenced in the settlement agreement, the physician may later be available to provide opinions or evaluations related to the SIBTF claim if retained by applicant counsel.

Strategic Takeaway

Applicant attorneys should consider:

• Naming the SII evaluating physician in settlement documents.
• Clearly identifying the physician whose opinions supported settlement.
• Preserving potential future access to that evaluator for SIBTF purposes.

5. Agreement on an Evaluator Is the Best Solution

The presenters repeatedly emphasized that the most efficient path forward may be for applicant and defense attorneys to agree upon an evaluator while the SII case remains active.

Benefits include:

• Reduced future discovery disputes.
• A stronger and more complete evidentiary record.
• Greater certainty regarding available medical-legal evidence.
• Improved opportunities to resolve both the underlying case and any future SIBTF issues.

6. Strategic Use of AMEs

Applicant attorneys may utilize AMEs to rebut opinions when appropriate.

Discussion focused on the possibility that a well-supported AME opinion can create opportunities to establish SIBTF eligibility and address contested issues regarding impairment and causation.

7. Labor Code §4751: What Wasn’t Written Matters

A notable discussion centered on the removal of the term “affecting” from statutory language.

The presenters emphasized that while practitioners may no longer rely on the concept of a condition “affecting” a body part, the statute does not prohibit discussion of the effects of an impairment.

Example

• CTS may not be described as “affecting the wrists.”
• The effects of CTS, such as numbness and tingling, remain relevant medical findings.

The message was clear:

Sometimes what lawmakers do not write is just as important as what they do write.

8. Specialty Consultations Create Opportunities

Psychiatric and Internal Medicine evaluations were identified as important tools for addressing overlap issues and supporting combined disability analyses.

These specialty evaluations may assist in:

• Clarifying impairment interactions.
• Distinguishing pre-existing disability from industrial disability.
• Helping claimants meet SIBTF thresholds.
• Supporting 100% disability analyses where appropriate.

9. Medical Evidence Is Not Medical-Legal Evidence

The presenters stressed an important distinction:

Medical Evidence

Supports diagnosis, treatment, and clinical care.

Medical-Legal Evidence

Must satisfy the evidentiary standards necessary to support or defend a claim.

The existence of medical treatment records alone does not necessarily satisfy medical-legal requirements.

10. Vocational Evidence Is More Important Than Ever

A consistent theme throughout the lunch was the importance of vocational reporting.

The presenters emphasized:

• Vocational reports should be obtained early.
• Ideally, vocational evidence should be developed before trial.
• Vocational evidence should be secured before settlement of the SII case.

Key functions of vocational evidence include:

• Establishing Whole Person Impairment (WPI)
• Differentiating pre-existing disability from industrial disability
• Supporting SIBTF threshold requirements
• Assisting in disability overlap analysis

11. Cooperation Between Applicant and Defense Counsel

While some attendees expressed concern that SB 171 shifts additional responsibilities to defense attorneys, the presenters encouraged collaboration rather than conflict.

The consensus was:

• Applicant attorneys should avoid unnecessarily burdening defense counsel with expansive cumulative trauma discovery demands.
• Defense attorneys should recognize the practical challenges created by the legislation.
• Cooperative development of the evidentiary record benefits all parties.

12. The Goal: Give the Defense a Report They Can Settle On

Perhaps the most practical advice of the day was:

“The goal is to get the defense attorney to use your report to settle the case.”

Strong, comprehensive, and understandable medical-legal and vocational evidence benefits everyone and may help avoid unnecessary litigation.

13. Not Every QME Is Prepared for SIBTF Cases

A discussion arose regarding whether a QME may decline a SIBTF evaluation if they do not believe they possess the necessary expertise.

The presenters noted that SIBTF evaluations are among the most complex assignments in the workers’ compensation system. Concerns were raised that many newer QMEs have limited experience not only with SIBTF analysis but sometimes with medical-legal report writing in general.

Key Message for Physicians

Doctors should:

• Understand the statutory requirements for SIBTF.
• Be familiar with SIBTF qualification standards.
• Recognize the unique complexities involved in pre-existing and subsequent disability analyses.
• Assess whether they possess the expertise necessary before accepting these assignments.

14. Growing SIBTF Backlog

The presenters reported that there are approximately 30,000 pending SIBTF cases, highlighting the enormous volume of unresolved matters and the increasing importance of efficient, well-developed medical-legal evidence.

Bottom Line

The lunch program underscored that SB 171 has shifted the battlefield from litigation strategy to evidence preservation. Success in future SIBTF cases will likely depend on:

• Building the record before settlement.
• Identifying the right evaluators early.
• Preserving existing medical evidence.
• Obtaining vocational evidence before trial.
• Understanding SIBTF qualification requirements.
• Working collaboratively when possible.

The parties who proactively develop medical-legal and vocational evidence during the underlying subsequent injury case will be in the strongest position when SIBTF issues arise later.

These takeaways are based on our understanding of the presentation. They are unofficial, paraphrased, and do not necessarily reflect the views of the speakers or organizers.