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Recently, a panel of three commissioners with the Workers’ Compensation Appeals Board (WCAB) addressed the “cannot parcel out” exception” outlined in Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal. App.4th 1535, 74 Cal. Comp. Cases 113. This case is particularly significant due to the fact that since Benson was decided, the proper application of the “cannot parcel out” exception has been a source of great deal of controversy and litigation.
In Herrera v. Maple Leaf Foods, 2018 Cal. Wrk. Comp. P.D. LEXIS --, the panel of commissioners, in a 32-page decision, held that if you have two injuries, with overlapping body parts, for example, back and psyche, if the medical evidence establishes that he back can be “parceled out” between the two injuries but that the psyche cannot, the injured worker is entitled to one, unapportioned award of permanent disability. This is particularly significant for potentially 100% permanent disability cases. Previously, it was thought that if more than one injury accounted for the permanent disability, getting to 100% was virtually impossible. Now, if the injured worker can place a difficult to apportion body part into play, for instance, the psyche or an internal condition, it could facilitate his or her chances of obtaining one, overall award of PD.
In conclusion, this is a very thorough, well written decision. In light of Labor Code Section 4663’s all-encompassing apportionment to “causation”, applying Benson in an effort to defeat apportionment has been a focal point of many workers’ compensation cases. This case should provide guidance to both practitioners and judges when it comes to the application of Benson where there is more than one case but where the cases have overlapping body parts.
Read the Herrera noteworthy panel decision.
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