It is Official: Wilkinson Is Dead

Tuesday, May 5, 2009 | 0

By Michel LeClerc


On April 29, 2009, the California Supreme Court denied review of the 1st District Court of Appeal case of Benson v. WCAB (2009) 170 Cal. App 4th 1535; 74 Cal. Comp. Cases 113, leaving the Benson decision as controlling law on apportionment of multiple injuries to the same body part(s) that become permanent and stationary at the same time.

Under the old Wilkinson rule, an injured worker with multiple injuries to the same body part that became permanent and stationary at the same time was entitled to a single, combined disability for all of the injuries.

Now With SB8 99 apportionment, a percentage of causation is assigned to each disability, whether they
become permanent and stationary at the same time or not, and the permanent disability for each injury is then awarded separately.  The only exception to this rule is the rare case where a physician cannot approximate percentages of causation between the injuries.

While it is still conceivable that another district of the Court of Appeal could reach a different conclusion than the 1st DCA (creating a split authority that would require reconciliation by the Supremes) I don't see a court saving the Wilkinson rule for one simple reason:  Wilkinson was based upon apportionment statutes that were junked with the passage of SB 899.



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Michel LeClerc is a partner in the law firm of Hansen LeClerc LLP in Redding, Calif. 
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