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Benson v. Workers' Compensation Appeals Board

February 10, 2009


(WCAB Case Nos. OAK 0297895, OAK 0326228).

The opinion of the court was delivered by: Haerle, J.


Diane Benson (Benson) seeks review of the en banc opinion and decision after reconsideration of the Workers' Compensation Appeals Board (Board) that granted her a total of $49,210, in two separate awards, based on a determination that two industrial injuries to her neck each caused 31 percent permanent disability. Benson contends she is entitled to a single award of $67,016.25 because she suffers a combined permanent disability from both injuries of 62 percent. Having previously granted Benson's petition for a writ of review, we now affirm the decision of the Board.


Benson began work as a file clerk for respondent Permanente Medical Group (Permanente) in April 1992. Benson's job required her to stand essentially all day, except for some brief periods of sitting, and it required repetitive neck and upper extremity motion. On June 3, 2003, she sustained an injury to her neck while reaching up over her head and pulling out a plastic bin to file a chart, at which point she felt a pain in her neck. The next day, she went to work, but her neck hurt even more. She was initially diagnosed with neck strain and put on light duty. On July 15, 2003, Benson was placed on temporary total disability and did not return to work thereafter. In November 2003, she filed an application for adjudication of claim alleging a specific injury on June 3, 2003. Benson eventually underwent a three-level fusion of the cervical spine.

On September 26, 2005, Benson was examined by Joseph Izzo, M.D., who was acting as an agreed medical examiner (AME). In his report, Dr. Izzo concluded that Benson had actually sustained two separate injuries to her neck -- the specific injury on June 3, 2003, and a cumulative trauma injury through June 3, 2003. Dr. Izzo also concluded that Benson's injuries both became permanent and stationary on September 26, 2005. Dr. Izzo apportioned half of Benson's permanent disability to cumulative trauma through June 3, 2003, and half to the specific injury of June 3, 2003.*fn1 Dr. Izzo concluded there was no basis for apportionment to non-industrial factors. Benson later filed a second claim for the cumulative trauma injury.

It is undisputed that Benson's combined permanent disability rating is 62 percent, after adjustment for age and occupation. At trial before the workers' compensation judge (WCJ), Permanente argued that the 2004 workers' compensation reform legislation, enacted as Senate Bill No. 899 (2003-2004 Reg. Sess.),*fn2 abrogated Wilkinson v. Workers' Compensation Appeals Bd. (1977) 19 Cal.3d 491 (Wilkinson) and necessitated two separate awards of 31 percent permanent disability. Benson urged that Wilkinson had survived Senate Bill No. 899 and argued for the imposition of a single award based on a combined rating of 62 percent permanent disability. The WCJ issued her findings and award, which applied Wilkinson and issued a single award of $67,016.25 based on the combined permanent disability rating.

Permanente filed a petition for reconsideration, which the Board granted. Thereafter, the Board issued an en banc opinion and decision after reconsideration, wherein a majority of the Board held that "the rule in Wilkinson is not consistent with the new requirement that apportionment be based on causation and, therefore, Wilkinson is no longer generally applicable. Rather, we now must determine and apportion to the cause of disability for each industrial injury."*fn3 Applying its holding, the Board concluded that "[b]ased upon the AME's determination that each of [Benson's] two injuries was equally responsible for her current level of permanent disability, she is entitled to receive a separate award of 31 percent permanent disability for each injury." The Board amended the WCJ's findings and award to provide for two separate awards of $24,605 each, based on two separate ratings of 31 percent permanent disability. The Board's two awards entitle Benson to a total of $49,210, with each award payable at $185 per week for 133 weeks. The WCJ's combined award entitled Benson to a total of $67,016.25, payable at $185 per week for 362.25 weeks. The difference is caused by the non-linear benefit schedule, which more generously compensates more severe disabilities. (Brodie, supra, 40 Cal.4th at p. 1321 & fn. 5; Lab. Code, § 4658 [number of weeks of indemnity increases in proportion to percentage of permanent disability].)

One commissioner dissented, arguing that Senate Bill No. 899 did not impact Wilkinson and, alternatively, that substantial evidence did not support a finding that any permanent disability was caused by Benson's cumulative injury. This petition for a writ of review followed.


Benson maintains that the Board erred by: (1) holding that the repeal of former Labor Code section 4750 (repealed by Stats. 2004, ch. 34, § 37),*fn4 and enactment of new sections 4663 and 4664, abrogated the Wilkinson doctrine and/or (2) applying sections 4663 and 4664 to require apportionment between two simultaneous industrial injuries.*fn5

For the reasons discussed below, we conclude that Senate Bill No. 899 superseded the Wilkinson doctrine and that current sections 4663 and 4664 require apportionment to each distinct industrial injury causing a permanent disability.*fn6


When a workers' compensation decision rests on the Board's erroneous interpretation of the law, the reviewing court will annul the decision. (Save Mart Stores v. Workers' Comp. Appeals Bd. (1992) 3 Cal.App.4th 720, 723.) The Board's conclusions on questions of law are reviewed de novo. (Barnes v. Workers' Comp. Appeals Bd. (2000) 23 Cal.4th 679, 685; Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 402.) When the reviewing court is asked to interpret and apply a statute to undisputed facts, the review is de novo. (Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 352.)

When interpreting a statute, the reviewing court's purpose is to effectuate the Legislature's intent. (DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387.) "In construing a statute, [the court's] first task is to look to the language of the statute itself. [Citation.] When the language is clear and there is no uncertainty as to the legislative intent, [the court should] look no further and simply enforce the statute according to its terms. [Citations.]" (Id. at pp. 387-388.) " ' "If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose." [Citation.]... "When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear." [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.]' " (Id. at p. 388.)

If the statutory language is susceptible to more than one reasonable interpretation, the courts look to "extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]" (People v. Woodhead (1987) 43 Cal.3d 1002, 1008.) "In interpreting the workers' compensation statutes, [the court] give[s] great weight to the construction of the [Board], unless it is clearly erroneous or unauthorized. [Citation.]" (Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 34; accord, Brodie, supra, 40 Cal.4th at p. 1331.) On the other hand, the workers' compensation statutes "shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment." (§ 3202.)


Section 3208 defines "injury" as "any injury or disease arising out of the employment...." Under section 3208.1 "[a]n injury may be either: (a) 'specific,' occurring as the result of one incident or exposure which causes disability or need for medical treatment; or (b) 'cumulative,' occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. The date of a cumulative injury shall be the date determined under Section 5412." "[A] compensable injury is one which causes disability or need for medical treatments." (Coca-Cola Bottling Co. v. Superior Court (1991) 233 Cal.App.3d 1273, 1284.)

The Labor Code does not define "permanent disability." However, " '[p]ermanent disability is understood as 'the irreversible residual of an injury.' [Citations.] (Brodie, supra, 40 Cal.4th at p. 1320.) "[P]ermanent disability payments are intended to compensate workers for both physical loss and the loss of some or all of their future earning capacity. [Citations.]" (Ibid.) The administrative regulations provide: "A disability is considered permanent when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment." (Cal. Code Regs., tit. 8, § 10152; accord, Department of Rehabilitation v. Workers' Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1292 [" '[T]he right to permanent disability compensation does not arise until the injured worker's condition becomes "permanent and stationary." ' "].) " 'The individual physical and mental abnormalities resulting from injury are referred to as "factors" of permanent disability. The individual factors taken together constitute the entire permanent disability.' (Cal. Workmen's Compensation Practice (Cont.Ed.Bar) § 17.13, pp. 537-538.)" (Hegglin v. Workmen's Comp. App. Bd. (1971) 4 Cal.3d 162, 171.)


The California Constitution confirms the Legislature's "plenary power... to create, and enforce a complete system of workers' compensation, by appropriate legislation...." (Cal. Const., art. XIV, § 4.) In 2004, the Legislature exercised that power by enacting omnibus reform of the workers' compensation statutes. (Brodie, supra, 40 Cal.4th at p. 1323.) Senate Bill No. 899 was "an urgency measure designed to alleviate a perceived crisis in skyrocketing workers' compensation costs." (Brodie, supra, 40 Cal.4th at p. 1329; accord, Stats. 2004, ch. 34, § 49.) The question presented is whether the Wilkinson doctrine remains controlling despite the ...

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