Medical Group, Athens
Administrators
Wilkinson V WCAB 19 Cal.3d 491
decision of the
WCAB
decision from the
Workers'
(WCAB).
former Supreme Court case
Wilkinson v WCAB applied.
3, 2003. The other injury filed
was for a cumulative trauma
an Agreed Medical Examiner in
the case that indicated the
applicant sustained two separate
injuries to her neck. The doctor
apportioned 50% to the
cumulative trauma and 50% to
the specific. Both injuries became
permanent and stationary at the
time of the evaluation on the
same date.
had a single award based on the
combined disability of the two
injuries at 62%. The defendant
appealed indicating under SB899
the WCJ has to apportion to each
injury and that SB899 abrogated
the Wilkinson rule.
decision of 29 pages. They
reviewed applicable statutes and
case law. They indicated that the
rule in Wilkinson is antithetical to
the new causation regime in the
current law of apportionment.
apportion to each injury.
Wilkinson is not consistent with
Labor Code section 4663 and
4664. However, they left a big
loophole. If the physician is
unable to determine based on
reasonable medical probability
then there will only be one
award. The physician might also
determine that all of the disability
is due to one of the successive
injuries. Thus, each case will now
be on a case by case basis
revolving around the factual
issues and whether the physician
is able to apportion to each
successive injury.
Firm: Samuelsen, Gonzalez,
Valenzuela and Brown
Address: 18881 Von
Karman # 250 Irvine 92612
Phone: 949 252-1300
Click here for printable version