Wilkinson & Parker: A Review of Multiple Disabilities

Sunday, February 1, 2004 | 0

When can different injuries be combined on the Multiple Disabilities Table?

Assume the following fact pattern: On one specific date (we'll call it February, 2002) the claimant sustained a specific industrial injury to his left knee. He underwent surgery in and returned to work in October 2002. The disability rating to the left knee, after age and occupation, is 43%. In February, 2004, he sustained a specific industrial injury to his right knee, which also resulted in the need for surgery, and a PD rating of 38%. Both injuries become P&S at the same time and the injured worker's wages are maximum for all purposes.

Can these injuries be combined into a single disability using the Multiple Disabilities Table to take advantage of the higher PD indemnity available for 2003 injuries?

If we were to apply the MDT at 2004 rates, the combined disability would be worth 68%, or $86,000 paid at the rate of $200 per week for 430 weeks.

If the MDT is used, then the 2002 injury would produce $36,890.00 for a period of 217 weeks at $170.00 per week, and the 2004 injury would produce $40,350.00 for a period of 201.75 weeks at $200.00 per week, or a combined value of $77,240 - almost ten thousand dollars less than if combined on the MDT. So the question has significant relevancy to case valuation.

The above fact pattern is basically the same fact pattern in Parker v. WCAB (1992) 9 Cal.App.4th 1636, where the court held that it was inappropriate to apply the MDT to these injuries despite the fact that they were P&S simultaneously.

The whole question of combining disabilities from different injuries started with Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491, and a host of cases following, which held that where successive injuries to the same part of the body become permanent and stationary at the same time, the injured employee is entitled to a PD award based upon his or her combined disability at the PD rates applicable at the time the last injury.

As you can see, the application of Wilkinson, where the indemnity rate changes according to injury date, can have significant impact on claim valuation.

In Wilkinson, both knees were injured simultaneously each time. Thus, "the same part of the body" in fact was injured in each successive injury at issue in Wilkinson.

The Parker court distinguishes this important fact pattern, relying on dictum in post-Wilkinson cases to arrive at the conclusion that separate body parts require separate ratings.

For example, the Parker court looks at Norton v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 618 and notes that while the MDT was applied to 4 successive, independent back injuries, it was not applied to a CT back or CT stomach injuries.

Other cases discussed and distinguished by the Parker court were Rielli v. Workers' Comp. Appeals Bd. (1982) 134 Cal.App.3d 721 and Harold v. Workers' Comp. Appeals Bd., (1980) 100 Cal.App.3d 772. Of these, the Court said:

"In summary, Norton, Harold, and Rielli share a common theme recognizing appropriately a major premise of Wilkinson that is absent in the instant case. Specifically, because the successive injuries in Wilkinson were to the same part of the body and did not become permanent and stationary at distinctly different times, it was impossible or impracticable from an evidentiary standpoint to factually and legally establish apportionment. (Wilkinson, supra, 19 Cal.3d at pp. 497- 500.) It is, therefore, the interaction of injuries to the same part of the body that serves as the primary, indispensable foundation of the Bauer-Wilkinson line of cases."

The Parker Court also discusses a Writ Denied case, Powerline Oil Co. v. Workers' Comp. Appeals Bd. (1982) 47 Cal.Comp.Cases 1163, but says that case is inapposite to their decision because both medical examiners, and the Board as a consequence, were unable to distinguish between the two injuries because they occurred so close in time to each other (four days).

Thus, if an injured worker sustains two successive injuries to the same body part that become permanent and stationary at the same time while working for the same employer, the Wilkinson rule applies. Using the workcompcentral.com MDT calculator, the disability for each injury would be input into the appropriate field, and the applicable injury date range for the last injury would be selected from the drop down menu. You would click on the button "Single Extremity" to perform the calculation.

However, if the Wilkinson rules do not apply, and you have a situation more akin to Parker, then do not use the MDT - each injury will be rated, and valued, independently.

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