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Benson (California) (California) (California)

PostPosted: Tue Oct 06, 2009 9:37 am
by denyse
Facts: 6 body parts. MDT is 98%, 94% after non-industrial apportionment taken out. 3 DOI's. When you use Benson the ratings for the 3 DOI's are as follows: 33%, 65% and 33%. Yes the ER has avoided the LP, but the sum total is 131%. Is the any case law on a maximum (100%), or is it 3 stips as outlined? Obviously with Benson you lose the compaction of the MDT (95% versus 131%) when you segregate.

Re: Benson (California) (California) (California) (California)

PostPosted: Tue Oct 06, 2009 2:43 pm
by stewshe
denyse,

It depends...a common answer in comp!

If the D/A is o/a 1/1/05 in all three cases, you can have up to 700% PD total on 7 or more injuries involving different "regions" of the body...e.g., 100% on each one per L.C. §4664(c)(1).

Under the 4/97 Schedule Wilkinson would have prevented this, but now, post Benson, perhaps not. The money will be paid our quicker and there will be no life pension....

Re: Benson (California) (California) (California)

PostPosted: Wed Oct 07, 2009 8:01 am
by denyse
Psyche comes in and pushes the 65% to 70%. 70% + LP + 33 + 33??? 1997 PDRS

Re: Benson (California) (California) (California)

PostPosted: Thu Oct 08, 2009 8:04 am
by vampireinthenight
There is no overlap of disability? Is each DOI comprised of separate body parts? Hard to believe there would be no overlap with that much disability and that many body parts.

I would start with the first DOI and then proceed to the subsequent ones, apportioning out the preexisting as you go.

Re: Benson (California) (California) (California)

PostPosted: Thu Oct 08, 2009 11:38 am
by denyse
Overlap/duplication was taken out. All DOI's ps on the same date. No awards. Actually the doctor did a masterful job. His lifting preclusion + RM to neck was to the spine, above shoulder work preclusions to the shoulders, gripping preclusions to wrists and LE preclusions to the knees. Very clean. Do you have any case law to support your POA. Benson seems clear here.

Re: Benson (California) (California) (California)

PostPosted: Fri Oct 09, 2009 8:06 am
by vampireinthenight
Sorry, no case law off the top of my head, just the plain language of 4663. I know you are a very good rater, so if you say the PD is described well, I believe you. Many times I miss some overlap when I rate the old cases myself. As far as capping anything at 100%, stew is correct and it sounds like your disability is spread around enough to allow a total over 100%.

The good news is that you are still paying much less than an award at 94%.

Re: Benson (California) (California) (California)

PostPosted: Sat Oct 17, 2009 8:19 am
by jakelast@aol.com
And the applicant will likely have a claim against SIF for the differential amounts that would be payable if Benson did not apply, including any pre-existing non-industrial disabilities (bad eyes, bad hearing, bad heart etc) that might very well push the case to 100%