A legal certified specialist Workers’ Compensation attorney and an expert employment law attorney in the state of California, Lawyer Michael Burgis provides a brief overview of California Workers’ Benson v.s. Workers Compensation Appeal Board where the ruling cites Labor Code §§4663 and 4664 and how changes to injury apportionment rules drastically affected work comp injured workers benefits.
In Benson, applicant suffered a specific neck injury on June 3, 2003, resulting in a three-level fusion of the cervical spine.
Her initial Application for Adjudication related only to the specific injury. However, after she was examined by an AME in orthopedics, the AME determined applicant also suffered a cumulative trauma injury through June 3, 2003.
The AME concluded that both of applicant’s injuries became permanent and stationary at the same time. The doctor apportioned 50% of the applicant’s cervical spine disability to the specific injury and 50% to the cumulative trauma. There were no nonindustrial contributory causal factors related to applicant’s cervical spine disability. It was undisputed the combined permanent disability rating for both injuries was 62% after adjustment for age and occupation.
Following trial, the WCJ relying on the Wilkinson case, issued a combined award of 62% permanent disability. Defendant filed a Petition for Reconsideration arguing the Wilkinson decision was inconsistent with SB 899 and Labor Code §§4663 and 4664, which required that applicant’s cervical spine disability be apportioned between the cumulative trauma and specific injury resulting in separate awards of 31% permanent disability. A combined award of 62% equated to a dollar value of $67,016.25. However, with two separate awards of 31%, the permanent disability would only be $49,210.00, a significant difference of $17,806.00.
The WCAB granted defendant’s Petition for Reconsideration and in an en banc Opinion and Decision held the rule in Wilkinson was inconsistent with the new requirement that apportionment be based on causation. The Board found that Wilkinson was no longer controlling and therefore amended the WCJ’s finding and awarded applicant two separate awards of $24,605.00, based on separate ratings of 31% permanent disability. Applicant filed a Writ with the Court of Appeal.
The Court of Appeal affirmed the WCAB’s en banc decision, finding SB 899 and the enactment of Labor Code §§4663 and 4664 and the repeal of former §4750 revealed a plain intent to adopt a new apportionment scheme that was inconsistent with the prior Wilkinson doctrine of combined awards related to multiple injuries to the same part of the body that became permanent and stationary at the same time.
The Court of Appeal noted the California Supreme Court’s decision in Brodie, holding that both §§4663 and 4664 “made clear that apportionment is required for each distinct industrial injury causing a permanent disability, regardless of the temporal occurrence of permanent disability or the injuries themselves.” The Court of Appeal also indicated, “that the only relevant inquiry is whether separate and distinct industrial injuries had been sustained. If so, then each injury must stand on its own.”
With respect to this refresher overview of the Benson case, it is important to note that nowhere in the WCAB’s en banc decision or the Court of Appeal’s decision was the cryptic conclusory phrase “inextricably intertwined” mentioned.
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The information in this video generally applies to Workers Compensation cases in California and may vary based on the facts of your case. Any questions or concerns, feel free to call. MB&A is here to help bring "Recovery to the injured.". Please visit our office anytime.
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