NEW CLASS ANNOUNCEMENT
Announcing, the first class in our - Industry Education Series - A series of Educational Forums provided to the Workers' Compensation Industry
NEGOTIATING AND SETTLING LIENS
DATE: 3/19/2009
LOCATION: Scott's Jack London square
TIME: 8:30 am to 1:00 pm
Register now at http://www.workcomptv.com/registration.html
Spend $150 and save thousands!
Class includes: Legal perspective from Dave Schmit, Esq.; EDD Rep participation, Retired WCAB Judge and Hearing Rep perspective!
The Second Class of The Series will be announced shortly for May 2009.
"Preparing For A Utilization Review Audit"
1. Avoid penalties and fines
2. Improve your company Best Practices for UR
3. Receive a passing score on your audit
4. Save your company money
Wednesday, February 11, 2009
Monday, September 1, 2008
Negotiating and Settling Liens
NEW CLASS ANNOUNCEMENT
Announcing, the first class in our - Industry Education Series - A series of Educational Forums provided to the Workers' Compensation Industry
NEGOTIATING AND SETTLING LIENS
DATE: 3/19/2009
LOCATION: Scott's Jack London square
TIME: 8:30 am to 1:00 pm
Register now at http://www.workcomptv.com/registration.html
Spend $150 and save thousands!
Class includes: Legal perspective from Dave Schmit, Esq.; EDD Rep participation, Retired WCAB Judge and Hearing Rep perspective!
The Second Class of The Series will be announced shortly for May 2009.
"Preparing For A Utilization Review Audit"
1. Avoid penalties and fines
2. Improve your company Best Practices for UR
3. Receive a passing score on your audit
4. Save your company money
Announcing, the first class in our - Industry Education Series - A series of Educational Forums provided to the Workers' Compensation Industry
NEGOTIATING AND SETTLING LIENS
DATE: 3/19/2009
LOCATION: Scott's Jack London square
TIME: 8:30 am to 1:00 pm
Register now at http://www.workcomptv.com/registration.html
Spend $150 and save thousands!
Class includes: Legal perspective from Dave Schmit, Esq.; EDD Rep participation, Retired WCAB Judge and Hearing Rep perspective!
The Second Class of The Series will be announced shortly for May 2009.
"Preparing For A Utilization Review Audit"
1. Avoid penalties and fines
2. Improve your company Best Practices for UR
3. Receive a passing score on your audit
4. Save your company money
Thursday, January 24, 2008
Court Rejects "Honest Misperception" Standard
Court Rejects "Honest Misperception" Standard - Objective Evidence of Harassment Required for Injury
One of the unanswered questions that we have had since the revisions to Labor Code § 3208.3 in July of 1993 is exactly what impact the statutory changes had on the concepts outlined in the Alberson's v W.C.A.B. (Bradley) case that established a "subjective perception" standard for an injured worker's development of a psychiatric disorder related to employment. The Appeals Court in Albertsons' held that the test for whether an employers conduction resulted in as stress full work environment depended on the employee's perception of the events of work and that as long as the employee "honestly perceived" the employment situation as being stressful, the burden for proving injury had been met.
As part of the 1993 reforms, the legislature imposed a higher standard for proof in psychiatric cases, requiring "actual events" of employment to be predominate as to all causes. Subsequent cases have helped to define what is and is not a work related event (PG & C v W.C.A.B. (Barnes) held that dips in the employee's retirement plan due to stock fluctuations was not an event of employment). However viability of the "honest perception" standard has not been addressed in appellate law, until now.
In Verga v W.C.A.B. & United Airlines, the 3rd Appellate district has taken the issue head on and clearly indicated that the "honest perception" standard was intentionally abrogated by the legislature with the changes to Labor Code § 3208.3:
"Section 3208.3, subdivision (b)(1) "was intended to overrule [Albertson's]" (1 Hanna, Cal. Law of Employee Injuries and Workers' Compensation, supra, § 4.02[3][b], p. 4-22) by imposing "more stringent requirements for [psychological injuries] than the subjective standard set forth in Albertson's." (Save Mart Stores v. Workers' Comp. Appeals Bd. (1992) 3 Cal.App.4th 720, 724, fn. 3.)
Thus, for claims like those tendered in Albertson's and in this case, we agree with a leading treatise on workers' compensation law that the "actual events of employment" language added by section 3208.3, subdivision (b)(1) "can be interpreted" as requiring the employee to establish "objective evidence of harassment, persecution, or other basis for the alleged psychiatric injury." (1 Hanna, Cal. Law of Employee Injuries and Workers' Compensation, supra, § 4.02[3][b], p. 4-22.) That interpretation, which we adopt, is the one most consistent with the purpose of the statute, and is the interpretation applied by the WCAB in this case (citation omitted)"
In the Verga case, the W.C.A.B. determined that the employee's own actions in being hostile and inappropriate with co-employees was the actual cause of the applicants job stress, not the actions of the employees in the situation. The employer presented evidence from multiple employees all attesting that the applicant
"...was rude, inflexible and easily upset, and caused stress to co-workers, who at the staff meeting on January 14, 2000, advised Verga of their dissatisfaction with her behavior...
In sum, the evidence established that Verga had a very low frustration level and abused her co-workers when they did not meet her expectations. Although her co-workers reacted with disdain in their efforts to change Verga's behavior, their disdain was relatively benign. Verga was the aggressor, and she created the negative work atmosphere that she asserts caused her psychological injuries. Allen and Pena attempted to counsel Verga that her rudeness and inflexibility was counterproductive; but she chose to ignore their advice and continued to belittle her co-workers. She willfully demeaned her fellow employees.
"
The W.C.A.B. determined that the applicant's perception of the co-employee's reactions to her was not the predominate cause of the job stress but that it was her conduct, which resulted in the co employee's responses to her that provoked the stressful reaction in applicant.
The court noted that Workers' Compensation is intended to be a no-fault system, but also concluded that a no fault system did not require that stress which was caused by the IW own conduct be considered as arising out of the job setting. The court also rejected Verga's argument that regardless of the accuracy of applicant's perception of the events of employment:
"...they were actual events of employment that caused her stress and resulting psychological injury. In her view, the WCAB improperly introduced an element of fault into the no-fault workers' compensation system by finding that Verga cannot recover compensation because the workplace events that caused her psychological trauma were in response to her own bad behavior. "
As noted by the court, such an interpretation would again inject the honest perception standard into the definition of psychiatric injuries;
"Conceding that the law no longer allows workers' compensation for a claim of psychiatric injury based on the claimant's "honest misperception of the events of the workplace," Verga nonetheless argues the WCAB's finding that she was subject to the disdain of her co-workers is objective evidence of her psychiatric injury when considered together with medical evidence that the disdain caused her to suffer such injury. In her view, because workers' compensation is a no-fault system, it does not matter that it was her own conduct that instigated her coworkers' disdain.
However, the evidence does not support Verga's claim that her co-workers' "disdain" caused her psychiatric disability, let alone that it was the predominant cause of such injury. Dr. Segal's view of the cause of Verga's injury was based on her version of the abuse and persecution to which she allegedly was subjected by co-workers. But the WCAB found that such abuse and persecution did not occur. In Dr. Duncan's view, the predominant cause of Verga's psychiatric injury was her own behavior, as well as legitimate personnel actions. Neither doctor opined that the predominant cause of Verga's injury was the mere disdain of her co-workers.
Verga's position that she should get workers' compensation for work-related stress because she perceived her fellow employees' disdain as unusually stressful and persecutory events, although they objectively were not, resurrects the subjective standard of Albertson's, supra, 131 Cal.App.3d 308. This is contrary to the Legislature's intent in enacting section 3208.3, subdivision (b)(1). "
This case provides another tool for employer's to defend psychiatric claims where the actual disorder arises out of the employee's perception of valid employment related conditions especially where the employee is the one cause the hostility within the workplace. Obviously presenting such cases will require very fact intensive records to be developed with arguments bordering on allegations of fault on both sides. However the court's description of the legal standards to be applied is relatively clear as its rejection of the Albertson's "honest misperception" standard as a basis for injury.
This case is an important step in understanding the nature of psychiatric injuries in California Workers' compensation law. A copy of the case is attached to this message and a link to the appellate case in available by clicking on the case name above.
One of the unanswered questions that we have had since the revisions to Labor Code § 3208.3 in July of 1993 is exactly what impact the statutory changes had on the concepts outlined in the Alberson's v W.C.A.B. (Bradley) case that established a "subjective perception" standard for an injured worker's development of a psychiatric disorder related to employment. The Appeals Court in Albertsons' held that the test for whether an employers conduction resulted in as stress full work environment depended on the employee's perception of the events of work and that as long as the employee "honestly perceived" the employment situation as being stressful, the burden for proving injury had been met.
As part of the 1993 reforms, the legislature imposed a higher standard for proof in psychiatric cases, requiring "actual events" of employment to be predominate as to all causes. Subsequent cases have helped to define what is and is not a work related event (PG & C v W.C.A.B. (Barnes) held that dips in the employee's retirement plan due to stock fluctuations was not an event of employment). However viability of the "honest perception" standard has not been addressed in appellate law, until now.
In Verga v W.C.A.B. & United Airlines, the 3rd Appellate district has taken the issue head on and clearly indicated that the "honest perception" standard was intentionally abrogated by the legislature with the changes to Labor Code § 3208.3:
"Section 3208.3, subdivision (b)(1) "was intended to overrule [Albertson's]" (1 Hanna, Cal. Law of Employee Injuries and Workers' Compensation, supra, § 4.02[3][b], p. 4-22) by imposing "more stringent requirements for [psychological injuries] than the subjective standard set forth in Albertson's." (Save Mart Stores v. Workers' Comp. Appeals Bd. (1992) 3 Cal.App.4th 720, 724, fn. 3.)
Thus, for claims like those tendered in Albertson's and in this case, we agree with a leading treatise on workers' compensation law that the "actual events of employment" language added by section 3208.3, subdivision (b)(1) "can be interpreted" as requiring the employee to establish "objective evidence of harassment, persecution, or other basis for the alleged psychiatric injury." (1 Hanna, Cal. Law of Employee Injuries and Workers' Compensation, supra, § 4.02[3][b], p. 4-22.) That interpretation, which we adopt, is the one most consistent with the purpose of the statute, and is the interpretation applied by the WCAB in this case (citation omitted)"
In the Verga case, the W.C.A.B. determined that the employee's own actions in being hostile and inappropriate with co-employees was the actual cause of the applicants job stress, not the actions of the employees in the situation. The employer presented evidence from multiple employees all attesting that the applicant
"...was rude, inflexible and easily upset, and caused stress to co-workers, who at the staff meeting on January 14, 2000, advised Verga of their dissatisfaction with her behavior...
In sum, the evidence established that Verga had a very low frustration level and abused her co-workers when they did not meet her expectations. Although her co-workers reacted with disdain in their efforts to change Verga's behavior, their disdain was relatively benign. Verga was the aggressor, and she created the negative work atmosphere that she asserts caused her psychological injuries. Allen and Pena attempted to counsel Verga that her rudeness and inflexibility was counterproductive; but she chose to ignore their advice and continued to belittle her co-workers. She willfully demeaned her fellow employees.
"
The W.C.A.B. determined that the applicant's perception of the co-employee's reactions to her was not the predominate cause of the job stress but that it was her conduct, which resulted in the co employee's responses to her that provoked the stressful reaction in applicant.
The court noted that Workers' Compensation is intended to be a no-fault system, but also concluded that a no fault system did not require that stress which was caused by the IW own conduct be considered as arising out of the job setting. The court also rejected Verga's argument that regardless of the accuracy of applicant's perception of the events of employment:
"...they were actual events of employment that caused her stress and resulting psychological injury. In her view, the WCAB improperly introduced an element of fault into the no-fault workers' compensation system by finding that Verga cannot recover compensation because the workplace events that caused her psychological trauma were in response to her own bad behavior. "
As noted by the court, such an interpretation would again inject the honest perception standard into the definition of psychiatric injuries;
"Conceding that the law no longer allows workers' compensation for a claim of psychiatric injury based on the claimant's "honest misperception of the events of the workplace," Verga nonetheless argues the WCAB's finding that she was subject to the disdain of her co-workers is objective evidence of her psychiatric injury when considered together with medical evidence that the disdain caused her to suffer such injury. In her view, because workers' compensation is a no-fault system, it does not matter that it was her own conduct that instigated her coworkers' disdain.
However, the evidence does not support Verga's claim that her co-workers' "disdain" caused her psychiatric disability, let alone that it was the predominant cause of such injury. Dr. Segal's view of the cause of Verga's injury was based on her version of the abuse and persecution to which she allegedly was subjected by co-workers. But the WCAB found that such abuse and persecution did not occur. In Dr. Duncan's view, the predominant cause of Verga's psychiatric injury was her own behavior, as well as legitimate personnel actions. Neither doctor opined that the predominant cause of Verga's injury was the mere disdain of her co-workers.
Verga's position that she should get workers' compensation for work-related stress because she perceived her fellow employees' disdain as unusually stressful and persecutory events, although they objectively were not, resurrects the subjective standard of Albertson's, supra, 131 Cal.App.3d 308. This is contrary to the Legislature's intent in enacting section 3208.3, subdivision (b)(1). "
This case provides another tool for employer's to defend psychiatric claims where the actual disorder arises out of the employee's perception of valid employment related conditions especially where the employee is the one cause the hostility within the workplace. Obviously presenting such cases will require very fact intensive records to be developed with arguments bordering on allegations of fault on both sides. However the court's description of the legal standards to be applied is relatively clear as its rejection of the Albertson's "honest misperception" standard as a basis for injury.
This case is an important step in understanding the nature of psychiatric injuries in California Workers' compensation law. A copy of the case is attached to this message and a link to the appellate case in available by clicking on the case name above.
Friday, January 11, 2008
LIVE BLOGGING PREMIERES!!!
WorkCompTV.Com is proud to announce that we will premiere our "live blogging" service at the February 21, 2008 seminar on "Preparing For A UR Audit".
Live blogging will allow you to get real time updates and opinions on the seminar as it happens!
Live blogging will allow you to get real time updates and opinions on the seminar as it happens!
NEW CLASS ANNOUNCEMENT
Announcing, the first class in our - Employer Education Series - A series of Educational Forums provided in conjunction with Kammerer & Associates
NEXT CLASS - "Preparing For A Utilization Review Audit"
1. Avoid penalties and fines
2. Improve your company Best Practices for UR
3. Receive a passing score on your audit
4. Save your company money
DATE: 2/21/2008
LOCATION: Scott's Walnut Creek
TIME: 8:30 am to 1:00 pm
Register now at http://www.workcomptv.com/registration.html
Spend $300 and save thousands!
The Second Class of The Series will be announced shortly for April 2008.
NEXT CLASS - "Preparing For A Utilization Review Audit"
1. Avoid penalties and fines
2. Improve your company Best Practices for UR
3. Receive a passing score on your audit
4. Save your company money
DATE: 2/21/2008
LOCATION: Scott's Walnut Creek
TIME: 8:30 am to 1:00 pm
Register now at http://www.workcomptv.com/registration.html
Spend $300 and save thousands!
The Second Class of The Series will be announced shortly for April 2008.
Friday, December 28, 2007
TTD RATE INCREASE FOR 2008
Division of Workers’ Compensation reminds workers’ compensation community of changes slated to take effect in 2008
New mileage rate, new temporary disability rate and new TD timeframe all apply Jan. 1
The Division of Workers’ Compensation (DWC) is reminding injured workers, employers, claims administrators, attorneys and others of three changes to workers’ compensation law that take effect Jan. 1, 2008.
The medical mileage rate for medical and medical-legal travel expenses will increase to 50.5 cents per mile. This rate must be paid for travel on or after Jan. 1, 2008, regardless of the date of injury.
Labor Code section 4600, in conjunction with Government Code section 19820 and the Department of Personnel Administration regulations, establishes the rate payable for mileage reimbursement for medical and medical-legal expenses and ties it to the Internal Revenue Service (IRS) published mileage reimbursement rate.
The mileage rate for 2007 was 48.5 cents per mile. The rate was 44.5 cents per mile between July 1, 2006 and Dec. 31, 2006, and prior to that increase, the rate had been 34 cents per mile since 2001.
In addition to the mileage rate increase, the temporary total disability (TTD) rate for 2008 increases to $916.33 per week on Jan. 1, 2008, and the period during which injured workers are eligible for TTD benefits has been expanded from two years to five.
This increase to the maximum TTD rate marks the second year in a row that the TTD rate will be affected by a change in the state average weekly wage (SAWW).
Beginning in 2006, Labor Code section 4453(a)(10) required the rate for TTD be increased by an amount equal to the percentage increase in the SAWW as compared to the prior year.
The California SAWW for the 12 months ending March 31, 2007 was $914.60. For the period ending March 31, 2006, this figure was $880, amounting to an increase of 3.932 percent. Applying this percent increase to the prior year’s maximum benefit of $881.66 brings the 2008 maximum benefit to $916.33. Applying the increase to the minimum benefit brings it from $132.25 to $137.45.
Under Labor Code section 4659(c), workers with dates of injury on or after Jan. 1, 2003 who are receiving life pensions (LP) or permanent total disability (PTD) benefits are also entitled to have their weekly LP or PTD rate adjusted based on changes in the SAWW. Claims administrators should be aware that many LP and PTD awards are reduced (by uniform reduction) in order to produce a lump sum for paying attorney’s fees. To adjust for the SAWW in cases where there’s been a prior commutation of attorney’s fees, the new rate should be based on the previous year’s rate before deduction for attorney’s fees, multiplied by the percentage change in the SAWW.
In addition to the increase in the TTD benefit rate brought about by changes in the SAWW, a bill signed this year by Gov. Schwarzenegger increased the window of time during which temporarily disabled employees are eligible to receive TTD benefits.
Reforms passed in 2004 made changes to the Labor Code that limited TTD payments to 104 weeks within a two-year period for a single injury occurring on or after April 19, 2004, except under certain limited conditions. The two years of eligibility were counted from the date of the first payment of temporary disability. Beginning Jan. 1, 2008, employees injured on or after that date will be eligible to receive the 104 weeks of disability payments within a five-year period. The five-year period is counted from the date of injury.
New mileage rate, new temporary disability rate and new TD timeframe all apply Jan. 1
The Division of Workers’ Compensation (DWC) is reminding injured workers, employers, claims administrators, attorneys and others of three changes to workers’ compensation law that take effect Jan. 1, 2008.
The medical mileage rate for medical and medical-legal travel expenses will increase to 50.5 cents per mile. This rate must be paid for travel on or after Jan. 1, 2008, regardless of the date of injury.
Labor Code section 4600, in conjunction with Government Code section 19820 and the Department of Personnel Administration regulations, establishes the rate payable for mileage reimbursement for medical and medical-legal expenses and ties it to the Internal Revenue Service (IRS) published mileage reimbursement rate.
The mileage rate for 2007 was 48.5 cents per mile. The rate was 44.5 cents per mile between July 1, 2006 and Dec. 31, 2006, and prior to that increase, the rate had been 34 cents per mile since 2001.
In addition to the mileage rate increase, the temporary total disability (TTD) rate for 2008 increases to $916.33 per week on Jan. 1, 2008, and the period during which injured workers are eligible for TTD benefits has been expanded from two years to five.
This increase to the maximum TTD rate marks the second year in a row that the TTD rate will be affected by a change in the state average weekly wage (SAWW).
Beginning in 2006, Labor Code section 4453(a)(10) required the rate for TTD be increased by an amount equal to the percentage increase in the SAWW as compared to the prior year.
The California SAWW for the 12 months ending March 31, 2007 was $914.60. For the period ending March 31, 2006, this figure was $880, amounting to an increase of 3.932 percent. Applying this percent increase to the prior year’s maximum benefit of $881.66 brings the 2008 maximum benefit to $916.33. Applying the increase to the minimum benefit brings it from $132.25 to $137.45.
Under Labor Code section 4659(c), workers with dates of injury on or after Jan. 1, 2003 who are receiving life pensions (LP) or permanent total disability (PTD) benefits are also entitled to have their weekly LP or PTD rate adjusted based on changes in the SAWW. Claims administrators should be aware that many LP and PTD awards are reduced (by uniform reduction) in order to produce a lump sum for paying attorney’s fees. To adjust for the SAWW in cases where there’s been a prior commutation of attorney’s fees, the new rate should be based on the previous year’s rate before deduction for attorney’s fees, multiplied by the percentage change in the SAWW.
In addition to the increase in the TTD benefit rate brought about by changes in the SAWW, a bill signed this year by Gov. Schwarzenegger increased the window of time during which temporarily disabled employees are eligible to receive TTD benefits.
Reforms passed in 2004 made changes to the Labor Code that limited TTD payments to 104 weeks within a two-year period for a single injury occurring on or after April 19, 2004, except under certain limited conditions. The two years of eligibility were counted from the date of the first payment of temporary disability. Beginning Jan. 1, 2008, employees injured on or after that date will be eligible to receive the 104 weeks of disability payments within a five-year period. The five-year period is counted from the date of injury.
Significant Permanent Disability Decision!
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.
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.
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