Benson application (California)

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Benson application (California)

Postby davidmcohn on Thu Jun 11, 2009 6:26 am

Applicant sustained injury 2/95 to back, received minimal treatment, 2 weeks of modified and then back to U&C until second injury to back in 11/95. Same employer and carrier. Never RTW after 11/95. The AME in deposition states that after the first injury he had intermittent slight to moderate subj. but could do U&C. He is limited to semi-sed and doctor says the entire need for restriction is due to the second injury. Restriction goes to 70% after age and occupation. Doctor also says he had intermittent slight after a 1990 back injury at that same employer but he never filed comp claim and was not paid anything for it. How does Benson apply?
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Re: Benson application (California)

Postby rosellavera on Thu Jun 11, 2009 11:28 am

Per Benson, each injury has to be rated separately. In your case, the second injury (11/95) is rated alone, and the first injury (1990 intermittent slight )is subtracted from the second.

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Re: Benson application (California)

Postby samcat on Thu Jun 11, 2009 9:00 pm

I'm not sure if Benson addressed this issue and one could argue that one divides the liability up based upon the M/L physician's opinion (ie 50/50). The more pressing issue (in my view) is whether an AME evaluating an injured worker currently in regard to injuries that occurred more than a decade ago can overcome the challenge of parsing out liability between injuries with reasonable medical certainty or finding that the two injuries being inextricably intertwined (the term used in Benson) and therefore combining under Wilkenson would still apply.
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Re: Benson application (California)

Postby chirple on Fri Jun 12, 2009 1:00 am

Seems to me you have three injuries with progressively worsening back disability. You are able to parse this out with the information you have, even without percentages.

1990 - Intermittent slight...rated age/occupation (SWAG) .... PD AWARD 5%
2/95 - Intermittent slight-mod...rated age/occupation (SWAG) 10% less 5% to the first injury...PD Award #2 5%
11/95 - Semi-Sed...rated age/occupation (per you) 70% less 10% pre-existing disability...PD Award #3 60%

Of course, the problem with this is that there are no prior Awards, so there is no LC 4664 application. However, a good deposition of the AME 'could' arrive at such apportionment. You may look to other reports/depositions of this AME to see and ask what work restrictions he would have given for intermittent slight and intermittent slight-moderate at the P&S date of each of these injuries.

This is an apples v. oranges argument over subjective rating and work restrictions, in the absence of LC 4664 apportionment.

But, at least it's not fruit v. vegetables under 'old v. new' schedule apportionment.
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Re: Benson application (California)

Postby davidmcohn on Fri Jun 12, 2009 7:58 am

The AME was deposed and would give no restrictions for either of the first two injuries. There is old case law out there that you cannot apportion to subjectives. Whether it would still be good law today is anyone's guess.
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Re: Benson application (California)

Postby steelmanlaw on Mon Jun 15, 2009 3:55 pm

David:

One: per your facts, the AME is a Board exhibit, and as such does not apportion the 70% to the prior at all; Two: burden of proof of apportionment is still is on the defendant. The real question is whether proof of the subjective complaint in the former injury proves anything in relation to the 70% found solely on the final injury by the AME. Accordingly, if the AME is apprised of the issue and does not apportion to the prior subj. c/o, then i don't see your problem.
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