A Workers’ Compensation Appeals Board en banc decision announced Friday overturns a 30-year-old precedent that provided an injured worker who sustains two separate injuries to the same part of the body, which become permanent and stationary at the same time, is entitled to receive a combined award of permanent disability.
The WCAB, in a 4-1 ruling, said passage of Senate Bill 899 undermines the reasoning that led the Supreme Court to establish the so-called “Wilkinson rule” in 1977. The split decision came in Diane Benson v. Permanente Medical Group (Athens Administrators), Nos. OAK 0297895 and OAK 0326228, 12/13/2007.
“We hold that the rule in Wilkinson is not consistent with the new requirement that apportionment be based on causation and, therefore, Wilkinson is no longer generally applicable,” the WCAB said in its opinion. “Rather, we now must determine and apportion to the cause of disability for each industrial injury. Therefore, all potential causes of disability – whether from a current industrial injury, a prior or subsequent industrial injury, or a prior or subsequent non-industrial injury or condition – must be taken into consideration.”
Benson, a file clerk for Permanente, felt a pain in her neck on June 3, 2003, while pulling out a plastic bin to file a medical chart. The condition grew worse and she was placed on temporary total disability on July 15, 2003.
Benson’s treating physician concluded that Benson had suffered two separate injuries. One was a cumulative injury to her neck and the other was the specific injury suffered on June 3, 2003. He assigned 50% of her disability to the cumulative trauma and 50% to the specific injury.
At trial, the workers’ compensation judge assigned a combined award of 62% permanent disability, following Wilkinson.
The WCAB, however, said the provision of SB 899 that requires apportionment for causation also changed the way awards for separate injuries should be calculated. Specifically, the 2004 reform bill repealed former Labor Code Section 4750 and enacted Sections 4663 and 4664.
In addition to requiring apportionment for causation, those code sections require that the apportionment of permanent disability must be determined based on the approximate percentage of the permanent disability that was caused by the direct result of injury and what approximate percentage of the permanent disability was caused by other factors. Employers are liable only for the percentage of permanent disability caused by the injury arising out of and occurring in the course of employment.
“Apportionment based upon causation is generally not consistent with combined awards of permanent disability, where such awards are based solely upon the fact that the injuries became permanent and stationary at the same time,” the WCAB said in its ruling. “In enacting SB 899, the Legislature mandated that each potential cause of disability be considered for each claim of injury.”
Commissioner Ronnie G. Caplane dissented. She said it is presumed when the Legislature enacts a statute that it has in mind existing law and long-established principles.
“The Legislature easily could have stated an intent to invalidate Wilkinson’s long-established principles, but it did not do so,” Caplane wrote in her dissenting opinion.
Moreover, Caplane said nothing in the plain language of Section 4663 prohibits a combined disability award for two injuries that become permanent and stationary at the
same time. Lastly, Caplane said a requirement that workers’ compensation laws be liberally construed in favor of injured workers requires the court to allow the combined award.
Commissioners Janice Jamison Murray and William O'Brien, whose terms ended last month, did not participate in the decision, although they remain on the board until Gov. Arnold Schwarzenegger appoints their replacements.
Defense attorney Richard "Jake" Jacobsmeyer said the WCAB relied heavily on the recent Brodie decision in reaching its conclusion. He said there will likely be resistance from medical doctors, who consider apportionment to be speculative and also expects the decision to be "heavily appealed" by applicants' attorneys.
Sue Borg, president of the California Applicants' Attorneys Association, agreed, noting that injured workers will receive smaller awards if the decision stands.
"This is bad news for injured workers -- terrible news," she said. "And I really think that they got it wrong, and the dissent has it right."
Borg said she's "certain that the issue will go back up to the Court of Appeal and probably to the Supreme Court," and when it does, she said, she expects CAA will be involved in the case.