On Benson (Part II)

Yesterday we discussed the use of the Benson decision and how we can break up large permanent disability ratings into smaller (and cheaper) ones.

But what about large periods of cumulative trauma?

Well, look to see if there were any gaps in the cumulative trauma or any periods of disability dotting the timeline of alleged disability.

In the case of Ferguson v. WCAB (1970) 35 CCC 452, the applicant claimed a cumulative trauma, but had a period of disability in the middle of the timeline for which he was off work.  The Board held that, under Labor Code § 3208.2, the applicant actually sustained three injuries:

(1)    A cumulative trauma ending at the time of the specific injury;

(2)    A specific injury

(3)    A cumulative trauma beginning after the applicant returned from disability for the specific injury, and ending with the last day worked.

If you’re faced with a long period of cumulative trauma, try to look for periods of disability.  A theory with some potential, one which I’m not aware of having been tried yet, is to argue that periods off work for non-industrial injuries should serve to break up cumulative trauma into separate injuries as well, akin to the specific injury in Ferguson.

Once you use Ferguson and § 3208.2 to effectively break up the single cumulative trauma into several little ones, write to the Qualified or Agreed Medical Evaluator requesting that each injury be given its own rating under Benson (Benson v. WCAB (2009) 170 Cal.App.4th 1535) and Labor Code § 4663.

Remember, permanent disability indemnity goes up drastically as you climb the impairment ladder.  One of the best ways to bring that impairment number down (as well as the amount the applicant will eventually be entitled to) is by breaking the whole impairment into its individual parts.

Good hunting!

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