The California Supreme Court denied review of a workers’ compensation case, thereby helping to solidify the 2004 employer community - supported workers’ compensations reforms.

The Supreme Court’s rejection of the petition for review in effect affirms a California court of appeals ruling that upheld the Legislature’s intent of containing costs through the passage of the workers’ compensation reforms in 2004.

In the case Benson v. Workers' Comp Appeals Board 170 Cal. App. 4th 1535 (2009), the appellate court held that if an employee suffers from a specific injury and a cumulative injury, regardless of when the injury occurred, the employee is entitled to two separate awards — one for each injury. The worker is not entitled to a combined award with a longer payout period as this is contrary to the legislative intent, the court ruled.

The entire panel of the Workers’ Compensation Appeals Board overturned an administrative law judge’s holding and found that, because the agreed medical examiner (AME) found that there were two different injuries and both were equally responsible for the disability, Benson is entitled to receive 31 percent award for each injury in the amount of $24,605 per injury. Each award is payable at $185 per week for 133 weeks. The ALJ’s award combined the two injuries into a 62 percent award, combining the two injuries for a total of $67,016.25, payable at $185 per week for 362.25 weeks. The difference between the amount of time found by the ALJ and the Board is caused by the non-linear benefit schedule, which more generously compensates more severe disabilities. Accordingly, because a 62 percent award indicates a more severe injury, the award should last longer to greater compensate the injured employee.

Benson argued the ALJ was right as the decision was consistent with a California Supreme Court decision that held the same (Wilkinson v. Workers’ Comp Appeals Board 19 Cal. 3d 491 (1977)). Permanente claimed that workers’ compensation reforms contained in SB 899 (Poochigian, 2004) dictated the Board’s holding. The court of appeal agreed with the Board because the SB 899 reforms changed the apportionment discussion to focus on the cause or pathology of an injury and not the actual disability. The SB 899 amendments refer to a singular injury relating to the employer’s liability, stating employers are liable only for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. Therefore, even though 62 percent of Benson’s permanent disability was directly caused by more than one injury arising out of and occurring in the course of Benson’s employment with Permanente, each distinct industrial injury directly caused only half of the permanent disability.

Special Thanks to the CalChamber for their analysis of this decision.

Two weeks ago, the Assembly Insurance Committee passed legislation that would give lifetime coverage for the public safety cancer presumption with no regard to the cost to local government or the impact on services (AB 128-Coto); at the same time the committee also passed a bill to extend presumptive injuries to ALL hospital workers, potentially sending healthcare costs even higher (AB 664-Skinner).

The Senate Labor & Industrial Relations Committee throughout April voted out legislation that would gut key sections of SB 899 on apportionment (SB 145-DeSaulnier) and voted to eliminate the pre-designation sunset without fixing significant loopholes to containing medical costs (SB 186-DeSaulnier); both potentially adding hundreds of millions of dollars at least to an already increasing system.

For more complete summaries of these four bills, please click HERE

We at CCWC want to commend Ms. Wei on her appointment.We will continue to strongly urge the Senate President Pro-Tempore andthe Speaker of the Assembly to utilize their Commission appointments toensure that labor and management are both representated instead ofmanagement seats being held by Democratic operatives and ApplicantAttorney firms.