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March 4, 2008

Benson v. The Permanente Medical Group/Athens Administrators

By: Vic R. Redula, esq.

Statement of Facts:

Applicant, Dianne Benson, started working for the Permanente Medical Group in 1992 as a file clerk. The job involved repetitive neck and upper extremity motion.

After doing this job for about 11 years, on June 3, 2003 she was reaching up over her head, pulling out a plaxtic bin to file a chart, when she felt a pain in her neck. She was initially diagnosed to have a neck strain and was placed on light duty assignment. Unfortunately, her symptoms became worse. On July 15, 2003 she was placed on total temporry disability and never returned to work. Applicant then filed a workers' compensation claim alleging specific injury on June 3, 2003. 

On October 19, 2004 she underwent a three-level fusion of her cervical spine.

The parties selected Dr. Joseph Izzo, M.D. as the Agreed Medical Examiner (AME). Dr. Izzo concluded that she sustained two separate injuries to her neck, the claimed specific injury on June 3, 2003 and a cumulative trauma injury through June 3, 2003. Dr. Izzo concluded that her injuries became permanent and stationary on the date of his evaluation on September 26, 2005. Because of this opinion, she filed another claim alleging cumulative trauma injury as opined by AME Izzo.

Dr. Izzo concluded that her injuries resulted in limitation to semi-sedentary work which was equally caused by the specific injury and by the cumulative trauma injury. In other words, 50% of her disability was caused by the specific injury on June 3, 2003 and the other 50% by her cumulative trauma injury.

After adjustment for age and occupation, it is undisputed that the combined permanent disability is 62% After trial, the Workers' Compensation Judge (WCJ) issued a single award based on the combined permanent disability of 62%. Defendant timely sought reconsideration contending that the apportionment provisions in SB 899 abrogated the Wilkinson Rule and mandated that applicant receive two separate awards of 31%.

Because of the important legal issue presented, the Chairman of the WCAB assigned this case to the Appeals Board as a whole for an en banc decision.

 The Appeals Board then held that, "Application of Wilkinson, and the concomitant merging of separate injuries into a single award of disability, is contrary to the reforms set in place by SB 899, which mandate that an employer canot be held liable for any disability other than that directly caused by the industrial injury."

DISCUSSION

At maximum permanent disabilty rate in this case, 62% is equal to $67,016.25 payable at the rate of $185.00 per week. However, 31% is only equal to $24,605.00  payable at the rate of $185.00 per week. Two 31% is only equal to $49,210.00 In other words, Ms. Benson lost $17,806.25 because of this decision. It is totally unfair to Ms. Benson and to other injured workers similarly situated. She is living with a 62% disability and NOT two 31% disabilities.

This decision has been appealed to the First District Court of Appeal. We are eagerly awaiting its decision.

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