SUMMARY OF ARTICLE:  In an en banc opinion issued December 13, 2007, the California Workers' Compensation Appeals Board (WCAB) held that the rule in Wilkinson v. Workers’ Comp. Appeals Bd. (1977) 19 Cal. 3d 491 [42 Cal. Comp. Cas 406] is not consistent with the requirement of SB 899 that apportionment be based on causation because the disability caused by each injury must be determined and apportioned separately.  Therefore, with limited exceptions, the permanent disabilities caused by successive injuries that become permanent and stationary at the same time may not be combined.

Rabine finds this opinion to be problematic for a number of reasons.  First, the facts of this case are not good for the WCAB’s holding.  The cumulative injury was first found by the AME long after the admitted specific injury.  It did not become symptomatic until the specific injury.  These are not successive injuries; they are concurrent.  This is probably the most difficult fact pattern to prove that separate injuries must be rated separately.  Further, as Commissioner Caplane points out, the medical evidence supporting apportionment between the injuries is almost non-existent. . . .(To read the entire article, you must register or login to download the article.)