The End of Wilkinson Rule
Thursday, June 25, 2009 | 0
By Mullen & Filippi
In previous editions of the Mullen & Filippi Bulletin, we have mentioned that we were awaiting decisions from the Second District Court of Appeal in the Vilkitis and Forzetting cases, which had the potential to conflict with the Benson decision, discussed in detail in the March 17, 2009, edition of the Bulletin. On June 18, 2009, the Second District issued its decisions in Vilkitis and Forzetting, discussed in this special edition of the Bulletin.
No Conflict With Benson. We are pleased to report that the decisions in Vilkitis and Forzetting do not conflict with the First District Court of Appeal decision in Benson. Instead, the Second District relied in part on the Benson decision to consistently find that the passage of SB 899 completely undermined the previously existing Wilkinson rule. As a result, consistent with Benson, the court found here that permanent disability is to be rated separately for each of the applicant's separate injuries. Under the old Wilkinson rule, disability for separate injuries which became permanent and stationary at the same time would have been combined for a single (and usually significantly higher) permanent disability rating.
The Vilkitis and Forzetting decisions were ordered not published in the official reports, and are not binding authority in other cases. The significance of these decisions is that they are consistent with Benson, and make it less likely that the Supreme Court will agree to review this issue should one of the applicants seek further review. At this point, the only published, and legally binding, decision on this issue is the First District Court of Appeal decision in Benson.
WorkCompCentral.com has reported that there is one more case pending before the Court of Appeal in which an applicant is seeking to preserve the Wilkinson rule. That case, LaPlante v. WCAB, is pending before the Fifth District Court of Appeal.
According to the court's docket, the Petition for Writ of Review in that case was filed on March 20, 2008, and the Court of Appeal has not yet issued an order either accepting or denying review. There has been no activity in the case since August, 2008.
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The Mullen & Filippi Bulletin is reprinted with the permission of the law firm from its website.
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