Benson v. Permanente Medical Group (2007) 36
CWCR 12
By
Megan K. Rogers
The issue presented in this case is whether the
rule in Wilkinson is still viable in view of
the significant changes effected by SB 899.
Wilkinson provided that an injured worker could
receive a single combined award of permanent
disability in circumstances of multiple injuries to
the same part of the body that become permanent and
stationary at the same time. However, in enacting SB
899, the Legislature repealed former section 4750,
thereby removing the statutory basis underlying
Wilkinson, and added the requirements that "[a]pportionment
of permanent disability shall be based on causation"
(Lab. Code, § 4663, subd. (a)).
The Court found that Wilkinson is not
consistent with the new requirement that
apportionment be based on causation and, therefore,
Wilkinson is no longer generally applicable.
The cause of disability for each industrial injury
must now be determined and apportioned. Therefore,
all potential causes of disability including current
industrial injury, a prior or subsequent industrial
injury, or a prior or subsequent non-industrial
injury must be taken into consideration. Thus, a
medical report that fails to offer an opinion on
apportionment of each separate injury cannot be
considered substantial medical evidence to justify
an award of permanent disability
The Court does observe that there may be limited
circumstances, where an evaluating physician cannot
determine, with reasonable medical probability, the
percentages to which each successive injury
contributed to the employee’s overall permanent
disability. Under these limited circumstances, a
combined award of permanent disability may still be
justified.
The facts of the case were as follows: Applicant,
sustained a specific neck injury while reaching up
over her head, pulling out a plastic bin to file a
chart. Applicant filed an application for
adjudication of claim alleging a specific injury.
The Agreed Medical Examiner (AME). concluded that
applicant actually sustained two separate injuries
to her neck, the claimed specific injury and a
cumulative trauma injury through the same period.
The AME concluded that Applicant’s injury was
equally caused by the specific injury and the
cumulative injury. Applicant then filed a cumulative
trauma claim in accordance with the AME report.
At trial, Applicant was awarded 62% total
permanent disability. Defendant disputed the
distribution of the award and argued that the total
permanent disability award should be split equally
between the 2 separate injuries.
The Court agreed with the Defendant’s reasoning.
Based on the changes in SB 899, the Court determined
that since the AME found Applicant’s disability was
caused equally by both her specific trauma and her
cumulative injury and there was no evidence to
justify apportionment to any non-industrial factors
or preexisting medical conditions, Applicant was
entitled to receive 2 separate awards equal to 50%
of the total disability. Therefore Applicant was
awarded two separate 31% PD Awards.
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