USING BENSON TO AVOID APPORTIONMENT

In a recent PANEL decision Alea v. WCAB [Herrera] the WCAB discussed a situation where it was not appropriate to use the Benson doctrine to apportion disability between two industrial injuries.  The WCAB gave Mr. Herrera a combined AWARD which increased his permanent disability by $9,280.00.

Mr Herrera had two separate injuries to his back, internal and psych.  One injury rated at 39% [$56,260.00] and the second at 68% [$120,422.50].  The Judge held that since the psych and internal injuries could not be apportioned – the two injuries would be combined for an AWARD of 83% [$185,962.50].  The psych and internal doctors had attempted to apportion their “body parts” pursuant to the orthopedic apportionment of 20% non-industrial.  The WCAB held that the psych and internal injury apportionment must be done independently of the orthopedic apportionment; as such, the apportionment determinations tied to the orthopedic determination did not constitute substantial evidence.

In any case where there are multiple body parts, the applicant attorney must make sure that each body part is apportioned properly.  If any of the doctors find that the two injuries are inextricably intertwined – then – the whole claim is combined for a larger disability percentage and settlement amount.

Using the Herrera decision to void apportionment and the principles discussed in my last blog to add the disability instead of using the CVC can advance your client’s case.

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