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As I sit to write this, I’m aware that a lot of the recent columns are about death.

A requiem for the bill to increase permanent disability monies. An obit for California’s vocational rehab.

And today, the apparent death of Wilkinson. Wilkinson?

Wilkinson was the decades old case (followed by a line of followup cases) that allowed successive injuries to the same body part to be rated as one injury rather than split into different ratings.

The policy rationale behind Wilkinson was that successive injuries often combined synergistically into a more serious level of disability, justifying a higher monetary recovery.

Opponents of Wilkinson derided the decision as allowing injured workers to receive “lucky bucks”. A 30% disability would produce a higher monetary award than successive 15% awards.

Today, Wilkinson stands on life support. Several months ago the 1st District Court of Appeal upheld a unanimous WCAB decision in Benson vs. Permanente which essentially ruled that the Wilkinson rule no longer applied due to the 2004 comp reform changes. The California Supreme Court refused to hear an appeal of the 1st District’s Benson ruling.

The California Supreme Court had ordered the 2nd District Court of Appeal to hear two cases involving the same issue. Those decisions are now rendered (though “unpublished”, unlike Benson). The 2nd District reaches the same conclusion as the Benson court.

One case is Vilkitis v. WCAB:
http://www.courtinfo.ca.gov/opinions/nonpub/B209235.PDF

The other is Forzetting vs. WCAB:
http://www.courtinfo.ca.gov/opinions/nonpub/B209323.PDF

It’s possible but unlikely that the Supreme Court will grant a hearing in either case. As a practical matter, the Wilkinson doctrine is on life support, and will die soon.

Injuries must now be rated successively. Splitting ratings up between a succession of smaller events rather than combining the rating will result in sharply reduced awards for some workers.

If there is a silver lining for disabled workers, it may be that Subsequent Injury Fund awards may be pursued more often. In an e -blast today, attorney Richard Jacobsmeyer claims that with the AMA rating many internal medical problems at a rather high level, in some circumstances SIF claims may become more viable (provided the SIF thresholds are met) , and predicts an uptick in SIF claims from many of the more sophisticated applicants attorneys.

Stay tuned.

Julius Young
www.boxerlaw.com
(have a tip? an idea to share? you can e mail me at jyoung@boxerlaw.com)

Category: Political developments

Julius Young

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