Benson v. WCAB is Cause for Celebration for WC Defense Community

Saturday, March 21, 2009 | 0

By Mullen & Filippi

The Benson Decision.
In a decision that is cause for celebration for the workers' compensation defense community, on Feb. 10, 2009, the First District Court of Appeal affirmed the the WCAB en banc ruling in Benson v. WCAB.

Basing its decision on the plain language of Labor Code sections 4663 and 4664, the repeal of Labor Code section 4750, the legislative history of SB 899, and deference to the boards interpretation of workers' compensation statutes, the Court of Appeal upheld the WCAB's ruling that where a person has multiple injuries, permanent disability must be assessed separately for each injury.

Previously, under the Wilkinson rule, when an injured worker had multiple injuries to the same body part which became permanent and stationary at the same time, disability for all injuries was combined and a single rating issued for the combined disability. In Benson, the Court of Appeal held that the 2004 revisions to the apportionment statutes supersede the Wilkinson rule.

The effect of the Benson decision can be dramatic.

An injured worker with multiple injuries who would have received a single permanent disability award entitling him or her to a life pension when combined under the Wilkinson rule may now instead receive two smaller awards at rates below the life pension threshold.

Even where life pension was never a possibility, the dollar value of two smaller awards is inevitably going to be less than for a single larger award. For example, in Benson, under the Wilkinson rule the applicant would have received a combined permanent disability award of 62%, entitling her to $67,016.25 in benefits. Instead, she received two separate awards at 31%, valued at $24,605.00 each, for total permanent disability benefits of $49,210.00.

While this decision represents a significant savings for employers and carriers, we should not indulge in too much celebration just yet. On March 11, 2009, the Second District Court of Appeal in Ventura heard oral argument in two other cases on the same issue, Vilkitis v. WCAB and Forzetting v. WCAB. We await that court's rulings. If the Second District disagrees with the First District, it will be up to the Supreme Court to break the tie.

Clearer Rules for Med-Legal Evaluations.
On Feb. 20, 2009, new regulations went into effect clarifying the rules for selecting a QME or AME, obtaining med-legal reports and conducting follow-up discovery. These new regulations are also cause for celebration, because they have the potential to significantly streamline the med-legal evaluation process.

The new regulations make a number of changes, and we do not have space here to discuss them fully.

Some highlights:

• 8 CCR section 31(c) now provides that a doctor cannot be both a QME and the treating physician.
• Section 31.3(b) prohibits discussing the selection of a QME from a panel with an unrepresented worker.
• Section 35(c) now requires that all records provided to an AME/QME must be listed on a log which is provided to the AME/QME and opposing party with the records.
• Section 35.5(f) now provides that an AME/QME is required to make himself/herself available for deposition within 120 days of the notice of the deposition.
• Section 36(e) now provides that when a panel QME has issued a report in the case of an unrepresented worker, no party can contact the QME to request a supplemental report on issues of apportionment until the DEU has issued its rating of the report. Before the rating is issued, any request for a supplemental report on this issue must be sent to the DEU, which can then, if they choose, request a supplemental report from the doctor.
• Section 38 now sets out clearer and more detailed deadlines for issuance of AME/QME reports, procedures for obtaining extensions of the deadlines, and consequences when a deadline is not met.