SAN FRANCISCO-- Can a worker with two or more simultaneous injuries receive a single, combined permanent disability (PD) rating as provided in Wilkinson or did the passage of SB 899 require that each injury be individually rated? That question has been working its way through the California Workers' Compensation Appeals Board and the state court system since the passage of that seminal bill and is now firmly in the hands of the Justices of the First District Court of Appeal (Benson v. WCAB).

But don't expect the dispute to end with its eventual decision.

Parties on both sides of the issue were in San Francisco yesterday to present their arguments, telling the court alternately that the passage of SB 899 either wiped out the Wilkinson doctrine entirely or that the Legislature's failure to mention Wilkinson anywhere in the statute means that it is still the law of the land. And afterwards neither side was willing to declare victory, noting the mixed signals they received from the bench. But any declaration would have been premature at best as the general consensus is that "this case is going up" -- an acknowledgment that whoever loses would appeal to the California Supreme Court for review.

The case drew amicus briefs from a number of parties, including Zenith Insurance, the County of Los Angeles, the California Workers' Compensation Institute and the California Applicants’ Attorneys Association. Representing Diane Benson at the hearing was attorney Timothy Timmons of Concord, while attorney Carl Taber of Petaluma was on hand to represent The Permanente Medical Group, Benson's employer at the time of injury.

The attention is not unwarranted, as the case has significant implications for both sides.

In the present case, Benson was deemed permanent and stationary for two neck injuries at the same time, and under the long-standing Wilkinson doctrine this resulted in a combined PD rating of 62% that was worth more than $67,000. But on appeal, the Board in a 4-1 en banc decision found that SB 899 did away with Wilkinson and that each injury should be rated individually. This resulted in a 31% rating for each injury and two separate awards of just under $25,000 each – a difference of more than $17,000.

Defining Injury

Much of the day's testimony focused on the questions of legislative intent and the nuances between a medical and a legal definition of injury.

On this latter point, the applicant attorneys were repeatedly challenged by Justice Paul Haerle on their contention that Benson's injuries were simultaneous, when one had a specific date of injury and the other developed over a long period of time. He pointed out that the physician in the case was able to apportion the injuries 50/50 as to causation between the acute and the cumulative injuries, so why not use this apportionment to set the PD rating?

"Under Norton there is no injury until it becomes compensable. That's the legal definition of injury," Timmons told the court, referring to the WCAB's earlier decision in Norton v. WCAB that the court had asked them to address. Under this rationale, Benson's cumulative trauma (CT) met a medical definition of injury, but for legal purposes the CT did not become an injury until the second injury occurred. Therefore, they were simultaneous injuries and under Wilkinson would result in a combined PD rating.

But Taber was quick to disagree.

"Once [the physician] found two injuries he had to apportion for two -- that's the core of this case," he told the Justices. "Under 4663(a) apportionment is to be based on causation and that makes irrelevant the issue of timing," he added, referring to the new Labor Code section that was created by the bill.

Taber also reiterated his earlier assertions that the legislature passed SB 899 in order to reduce workers' comp costs and that cutting PD awards was a natural part of that goal. That notion, however, was challenged both by the applicant attorneys and Presiding Justice Anthony Kline.

"The legislation was silent as to Wilkinson and its cynical and misplaced to say the legislature intended to reduce payments in all cases," applicant attorney Melissa Brown noted in her rebuttal comments.

Kline also said that cutting workers' comp costs does not necessarily mean cutting benefits for injured workers. He pointed out that at various times California has had some of the highest overall workers' comp costs while also having some of the lowest benefits. "So costs are not necessarily driven by awards," he replied, noting on more than one occasion that this will be a hard case to decide.

But that view was not held by all.

"I don't think the case is as difficult as the court seems to want to make it," Taber told Workers' Comp Executive. "Just look at Brodie. It's not logical to take away all the underpinnings to Wilkinson away and to think that it doesn’t come tumbling down as well."

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