On Benson (Part 1)
Ready for a discussion of Benson and related authorities that lasts the span of a few minutes? California Workers’ Compensation allows the defense a few maneuvers here and there to keep things interesting. Here’s what you need to know about Benson.
Each injury, past or present, gets its own rating and the impairment of an applicant gets broken up into injuries and causes. (Exception: if there is no way for the physician to parcel out the individual injuries with reasonable medical certainty, then a combined award may be appropriate.)
Pre-SB 899, the rule governing multiple injuries to one body-part was articulated in Wilkinson v. WCAB ((1977) 42 CCC 406). The rule there was: if there are several injuries to the same body part that become permanent and stationary at the same time, there is no apportionment and there is one massive impairment rating.
This means that four injuries to a body part that each cause an adjusted 5% disability ($2,760.00 x 4 injuries = $11,040.00) would actually be calculated as 20% disability ($17,365.00). Mind the $6,325.00 gap – imagine the difference with the higher impairment brackets!
Enter SB 899 and the case of Benson v. WCAB (2009) 170 Cal.App.4th 1535. Benson held that “each distinct industrial injury [must] be separately compensated on its individual contribution to a permanent disability.” (Benson, supra, 170 Cal.App.4th at p. 1560.)
Remember to cite Labor Code § 4663 as well, especially subsection (b): “Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the permanent disability.”
If a treating or evaluating physician doesn’t include a discussion of apportionment, even amongst the various claimed injuries, then the report is not complete under subsection (c). Usually, a letter requesting a supplemental report should do the trick.
So if you have an applicant claiming both a cumulative trauma and a specific injury, invoke Benson and break that claim up into pills a bit easier to swallow.
But that’s not all Benson is good for! What if you have a claim for a lengthy period of cumulative trauma – one which comes with a QME report of heavy impairment rating?
The dramatic conclusion… tomorrow morning.