In Benson v. Workers’ Compensation Appeals Board, et al., 170 Cal. App. 4th 1535, (2009), the California Court of Appeal, First Appellate District, issued its decision requiring separate rating of successive industrial injuries that become permanent and stationary at the same time. The case will likely reduce the compensation given to applicants with cumulative trauma injuries, which will reduce overall costs related to workers’ compensation claims.
Diane Benson, a file clerk for Permanente Medical Group, was required to stand most of the workday. Her job duties required repetitive neck and upper extremity motion. In June 2003, Benson injured her neck while reaching up to grasp a bin containing file charts. She reported for work the following day, but her neck hurt even more than it did at the moment she was injured. She was diagnosed with neck strain and assigned to light duty. In July, Benson was placed on temporary total disability and did not return to work. She eventually underwent a three-level fusion of the cervical spine.
Benson submitted a workers’ compensation claim for her injury. In 2005, Benson was examined by the agreed medical examiner (AME). The AME determined that Benson had sustained two injuries to her neck – the June 2003 neck strain injury, and a cumulative trauma injury through the date of the specific June 2003 neck strain injury. The AME apportioned her overall rating of 62% permanent disability equally to her specific neck injury (31%) and cumulative trauma (31%). As rated by the AME, Benson would receive $185 per week for a total of 362.25 weeks, or a total of $67,016.25. The workers’ compensation judge issued findings consistent with the AME’s rating.
Permanente Medical Group submitted a petition for reconsideration to the Workers’ Compensation Appeals Board (WCAB), arguing that the law, as modified by Senate Bill No. 899 in 2004, required that Benson’s injuries be rated separately. If Benson received two separate awards for 31% permanent disability (rather than a combined award for 62%), her total compensation would be $185 for 133 weeks, or $49,210 total. The difference is caused by the non-linear benefit schedule, where the number of weeks of indemnity increases with the severity of the disability.
The Board issued an en banc opinion concluding that Benson should have received separate awards for her injuries. The Board determined that the Wilkinson doctrine, in which the California Supreme Court interpreted the former Labor Code to entitle workers to receive awards based on a combined disability, was no longer consistent with the law as revised by Senate Bill No. 899. (See Wilkinson v. Workers' Compensation Appeals Bd. (1977) 19 Cal.3d 491, 494.)
Benson appealed to the First District Court of Appeal. The Court of Appeal followed the analysis by the WCAB, focusing on the adoption of Labor Code Section 4663 and the repeal of Section 4750, both parts of the omnibus reform embodied in SB 899. According to the court, the changes to these Labor Code statutes represented a major revision to the rules of apportionment. The court held that each separate injury requires a separate discussion by the medical expert in order to determine the causative sources of disability, thus establishing a new “causation regime," requiring all potential causes of permanent disability to be separately addressed and considered when apportioning disability pursuant to Labor Code Section 4663. Consequently, separate permanent disability awards are required in cases of successive industrial injuries.
The court recognized that there will be instances where an expert cannot parcel out with reasonable medical probability the approximate percentages to which each successive industrial injury contributes to the overall permanent disability. Under such limited circumstances, a combined award will be justified. In the majority of cases, however, separate awards must be made.
The case represents a win for employers in that the skyrocketing costs of workers’ compensation insurance will be impacted by reduced awards. The rule in Benson may not be the final word. There are currently two cases pending in the Second District Court of Appeal that will address the issue of separate awards for successive injuries. If the outcome in those cases differs from Benson, the California Supreme Court could take up the issue to make a final determination.