The impact of the Benson case on the value of permanent disability cases is now well established but not being addressed to its maximum advantage in claims’ handling. As a brief reminder of the holding, Benson v. WCAB (2009) 73 Cal.App.4th 15, 86 Cal.Rptr.2d 95, 64 Cal.Comp.Cases 148 was a significant en banc decision of the Workers’ Compensation Appeals Board that was reviewed and sustained by the Court of Appeal, First Appellate District, Division Two.
Briefly the injured worker sustained a specific injury to the neck and upper extremities for which a three level fusion was performed. Thereafter the parties went to an AME who found that there was a cumulative trauma injury as well as the claimed specific. He found the two injuries permanent and stationary at the same time, indicated that the applicant was semi-sedentary, and that each of the injuries was equally responsible for the disability.
At trial the defendant contended that two awards should issue each for 31% permanent disability equivalent to $24,605.00 for a combined total indemnity of $49,210.00. The WCJ awarded 62% permanent disability, equal to $67,016.25. The defendant filed a petition for reconsideration which was granted by the WCAB.
The WCAB indicated that Labor Code Section 4663 as amended by SB 899, requires that the disability caused by each injury must be designated unless it is impossible to do so. The WCAB further indicated that for the most part Wilkinson (Wilkinson v. Workers’ Compensation Appeals Board, (1977) 19 Cal.3d 491, 138 Cal.Rptr. 696, 564 P2d 848) and the line of cases stemming from that decision were abrogated by the specific changes made in the law of apportionment in SB 899. The decision of the WCAB was upheld by the Court of Appeal in the published opinion.
Coupled with the interpretation of Labor Code Section 4663 as amended by SB 899, we need to be vigilant to the anti-merger statute as set out in Labor Code Section 3208.2. That code section provides as follows:
When disability, need for medical treatment, or death results from the combined effects of two or more injuries, either specific, cumulative, or both, all questions of fact and law shall be separately determined with respect to each such injury, including, but not limited to, the apportionment between such injuries of liability for disability benefits, the cost of medical treatment, and any death benefit.
In managing claims, successive injuries are frequently adjusted out of one master claims’ file and the examiner as well as the treating and examining physicians use the date of the first injury and that incident as though it was responsible for all medical treatment needs, periods of disability and other benefits. This practice lends itself to the doctors ascribing to the single injury every body part injured, every surgery, and every benefit, regardless of an apparent progression of symptoms. There are many occasions when aggravating or exacerbating incidents occur that are not addressed adequately as potential separate injuries by the treating physician or examining physicians. Considering the application of the Benson decision, whenever a new incident occurs, the claims examiner or defense attorney needs to request the treating and/or examining physicians to address whether the incident is a new injury. A claim form should be forwarded to the injured worker relative to the new event. Through the vigorous and timely pursuit of medical opinion establishing a new injury, a clearer record of causation can be obtained and liability parceled out to subsequent injuries.
Since it is to the defendant’s advantage to have permanent disability divided up between a number of successive events rather than attributed to a single episode of injury an analysis of older cases needs to be undertaken. Claims that have been open for years where there has been interspersed periods of work with periods of disability lend themselves to the establishment of separate injuries to which a portion of permanent disability can be attributed. In making that assessment on these old cases you need to look for return to work periods followed by a new period of treatment or temporary disability, or a significant change in pathology. Then the treating doctor needs to be approached in a carefully and thoroughly documented letter to identify whether each of these several events constitute separate injuries and to address the extent to which these several events have each caused the need for treatment, temporary disability indemnity or permanent disability.
In assessing the effect of Benson, there is a serious legal issue as to whether a series of industrial injuries where permanent disability is apportioned between them can support a finding of total and permanent disability under a LeBoeuf analysis. (LeBoeuf v. Workers’ Compensation Appeals Board (1983) 34 Cal.3d 234, 193 Cal.Rptr 547, 666 P.2d 989) Since Benson requires the percentage of causation of permanent disability to be attributed to each separate injury event, the LeBoeuf analysis may be obsolete in a successive injury case.
In conclusion, taking advantage of the anti-merger statute coupled with the interpretation of SB 899 apportionment provisions should lead to an earlier identification of successive injuries with the result that when a final permanent and stationary status is achieved it will be easier to obtain the necessary medical opinions to apportion liability thus reducing overall costs.