Benson and Compensable Consequence (California) (California)

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Benson and Compensable Consequence (California) (California)

Postby shilohras on Thu Sep 17, 2009 4:41 pm

If applicant suffers a new injury as a compensable consequence of a prior injury, should the two DOIs be rated separately under Benson? Here, applicant had a low back injury which caused leg weakness. Several months after the fact, leg gives way and applicant breaks their leg falling. Assuming the nexus between back injury and subsequent leg injury is established, would it be appropriate to rate the two injuries separately under Benson? Your thoughts are much appreciated.
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Re: Benson and Compensable Consequence (California) (California)

Postby jpod on Fri Sep 18, 2009 8:54 am

I do not have any authority to cite to you but in my experience compensable consequences are not new injuries, they are part and parcel to, the original injury. The new body part expands the nature and the scope of the injury, but it is not a new distinct injury that must meet all the threshold requirements of LC 3600 before the new injury can be considered compensable. There is a causation link that ties it to the original injury.

So yes, there are two ratings, that are combined using the MDT tables, but this does not mean there are two dates of injuries and two claims.

If compensable consequences had to meet the thresholds required under LC 3600 many would fail b/c the employee may not have been engaged in "performing service growing out of and incidental to his, or her employment" as required by LC 3600(a)(2) when the slip and fall occurred so the "new" claim would be barred under LC 3600(a)(2).
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Re: Benson and Compensable Consequence (California) (California)

Postby stewshe on Fri Sep 18, 2009 10:59 am

jpod,

Your reasoning is impeccable! I agree 100%

However, I have a case where on somewhat similar facts the CA is trying to argue Benson where there was a prior stip to, e.g., 20% standard PD on a back injury, no heavy lifting. A couple of years went by and the EE's condition worsened and then he had a laminectomy and 2 level fusion. Needless to say, PD increased.

A petition for new and further was filed, the CA agrees on I think a 50% standard, BUT the CA insists on trying to apply Benson and L.C. 4664! He says there was a "Prior Award" so he feels Benson must apply!

What he's missing is that L.C. 4664(b) requires a "subsequent industrial injury" and there simply is not one in my case. IT IS THE SAME INJURY! PD increased but there is simply not another injury to use to apply Benson!

By the time the case gets to trial the penalties and interest will be up to the $10k max, but I hope sanctions as well will also be added.
James T. Stewart (stewshe@comcast.net)
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Re: Benson and Compensable Consequence (California) (California)

Postby shilohras on Fri Sep 18, 2009 1:07 pm

Thank you for your thoughts on this. It is much appreciated.
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Re: Benson and Compensable Consequence (California) (California)

Postby jpod on Fri Sep 18, 2009 2:22 pm

Hi Stew:

Well it sounds like the other party is wholly confused..sounds like they would believe it is possible to pull oneself up with their own bootstraps? (Credit for money paid to apply to money that was not paid so the total amount of money paid is less than the total due...hmmmm sounds like wall street math. I lost billions so I can give millions in bonuses....
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