Combining Succesive Industrial Injuries

Saturday, July 6, 2002 | 0

The Wilkinson rationale has been extended to combine any two or more injuries where there is a common part of body becoming permanent and stationary on the same date. The Wilkinson case involved a series of injuries to a single part of body. In Norton v. WCAB, 45 CCC 1098, one injury to the back and one to the gastrointestinal system and back were involved. Since both involved back injuries which became permanent and stationary at the same time, the injuries were combined, for rating purposes, into one injury, and no L.C. 4750 apportionment was applied.

The current state of the law is that, if there are two or more industrial injuries to a common part of the body that become permanent and stationary on the same date, no L.C. 4750 apportionment is applied, but they are combined for rating purposes. An example is where an employee sustains an injury to his back on January 1, 1998 and on March 20, 1998 sustains a second injury to the back. Later both back injuries become permanent and stationary on the same date. The employee is given a disability restriction to light work for both injuries (one-half apportioned to each injury). Under the Wilkinson doctrine the employee would get a combined disability rating for both injuries of light work, which is a 50% standard. If the Wilkinson doctrine was not applied, the employee would receive two 25% standard disability awards resulting in less money because the disability money chart is graduated.

However, if there is no common part of body becoming permanent and stationary at the same time, the injuries cannot be combined. In Parker v. WCAB, 57 CCC 608, the Court of Appeal affirmed the Board's refusal to combine two separate injuries, one to the left knee and one to the right knee, even though both injuries became permanent and stationary at the same time. The Parker case followed the Norton rationale that there must be one common part of body that becomes permanent and stationary at the same time in order to combine injuries.

In the case of Department of Corporations v. WCAB (Daniell), 61 CCC 1469, a Workers Compensation Judge combined four injuries to give a 100 percent disability where the injuries did not have a common part of the body and did not become permanent and stationary on the same date. The judge reasoned that Wilkinson applied only to situations where there was the same employer and the same parts of the body, becoming permanent and stationary at the same time. In the opinion of the judge the first two requirements: (1) that of the same employer and (2) the same parts of the body, had been eliminated. The judge ruled that where you have the same employer and no non-industrial components, Wilkinson should apply. The Board denied reconsideration and the writ was denied. However, in the case of Bloom v. WCAB, 63 CCC 429 , a judge issued separate findings and awards on a specific injury to the right upper extremity and a continuing trauma injury to the left upper extremity. The employee petitioned for reconsideration, stating that while the injuries did not become permanent and stationary at the same time, they occurred for the same employer and he argued that the rationale in Daniell applied. The WCAB denied reconsideration and indicated it was not bound by Daniell because it was a writ denied case and, in fact, disagreed with Daniell. Citing Wilkinson and Parker, the Board indicated that they still require successive injuries to the same part of body to become permanent and stationary at the same time before combining the injuries for rating purposes.

Based on an analysis of the last two writ denied cases, it can be concluded that Norton is still the law. Therefore, to combine injuries you must have one common part of body that becomes permanent and stationary at the same time, otherwise separate awards must issue. If there is a prior permanent and stationary rating in one of the cases, the Wilkinsonrule still can be applied if the Board has jurisdiction to reopen the old case and it is determined that, despite the permanent and stationary finding, the condition did not become permanent and stationary until after the successive injury (Harrold v. WCAB, 45 CCC 77). In this situation a credit will be allowed for the amount of permanent disability awarded, but the injuries will be combined. If the Board does not have jurisdiction to reopen the old case because it is more than five years from the date of injury, then they cannot be combined under the Wilkinson doctrine. In addition to a petition to reopen, the facts must show that, despite the earlier permanent and stationary finding, the employee's condition was not, in fact, permanent and stationary, but became permanent and stationary after the later injury.

When a consolidated rating is prepared under Wilkinson, both the age and compensation rate of the employee as of the time of the latest injury will be used, even though they were different at the time of the early injury or injuries (Nuelle v. WCAB, 44 CCC 439).

When combining disabilities under Wilkinson, the occupation that gives the highest rating among the injuries is used (United Airlines v. WCAB [Hornbaker], 50 CCC 457).