When defending against an applicant with a prior award under an older permanent disability rating schedule, practitioners should take a few extra steps to ensure that they get Benson apportionment to the prior award.

John P. Kamin

Although Senate Bill 899’s implementation of the 2005 Permanent Disability Rating Schedule (PDRS) took effect almost 20 years ago, there are still cases that pop up where applicants have prior awards under the 1997 PDRS.

These cases tend to feature the following common set of facts:

• Applicant has a prior PD award under the 1997 PDRS.
• Applicant now has a more recent case under a more recent PDRS (such as the 2005 PDRS or 2013 PDRS), which has PD to the same body part.

The panel decision of Minvielle v. Contra Costa School District 36 CWCR 199 and several subsequent cases have prevented defendants from obtaining apportionment to awards under the 1997 PDRS because of difficulty of comparing ratings under the two schedules. This is because the 1997 PDRS and 2005 PDRS used different standards to rate PD, with the 2005 PDRS (and later versions) requiring use of the AMA guides to rate PD.

The Minvielle decision stated that a court cannot just simply subtract the old rating from the new rating because the two PD schedules use such different standards and methodologies to rate PD. And other case law instructs us that it is the defendant’s burden to prove apportionment.

So what is a defendant to do?

Simple: The defendant should ask the qualified or agreed medical evaluator on the current case to rate the prior and current PD for that body part under both permanent disability rating schedules.

For example, let’s assume that we have a case with a 2003 PD award for the low back under the 1997 PDRS, and now have a 2016 date of injury for the low back. In this example, one would ask the med-legal expert to:

• Rate the 2003 PD for the low back under the 1997 PDRS and also rate the PD for the 2016 DOI for the low back under the 1997 PDRS.
• Rate the 2003 PD for the low back under the 2013 PDRS and also rate the PD for the 2016 DOI for the low back under the 2013 PDRS.

By doing this, it gives the court an “apples to apples” and “oranges to oranges” comparison of PD under each rating schedule. To use a real estate term, this is another way of providing “comps” so the court can determine how much PD existed decades ago versus how much new PD has occurred to that same body part since then.

When a defendant takes these steps, it also shows the court that the defendant asked for additional evidence to substantiate apportionment to the earlier date of injury.

While these cases are appearing less frequently due to the passage of time, when they do occur they usually feature older applicants who may have higher PD awards due to age and occupation.

That means obtaining apportionment to an older award could mean the difference between your new case being a life pension case or not.

So take care to get your apportionment to prior awards. It may just save your clients a lot of money.

John P. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.