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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 04-15-00087-CV
Regular Panel Decision
Mar 02, 2015

Estate of Shirley L. Benson

This is an appellant's brief challenging a trial court's decision to suspend a trustee and appoint co-receivers for the Shirley L. Benson Testamentary Trust. The appellant, Thomas Milton Benson, Jr., argues that the trial court's orders were an abuse of discretion due to a lack of evidence supporting a material breach of trust or irreparable harm. Furthermore, the appellant contends that the orders were issued without proper notice and violated due process, failing to comply with Texas Rule of Civil Procedure 683. The brief seeks reversal of the trial court's injunction and receivership orders.

Trust litigationTrustee removalReceivershipTemporary injunctionAbuse of discretionDue processNotice requirementsProbate courtTestamentary trustFiduciary duty
References
37
Case No. MISSING
Regular Panel Decision

Benson v. Tennessee Valley Electric Cooperative

Jim Benson was injured in a product liability case while working in a bucket truck manufactured by TECO and sold by Hobbs Equipment Company. A weld in the boom unit failed, causing the bucket to drop. Benson and his wife, Shirley Benson, sued TECO and Hobbs for negligent design, manufacturing, failure to warn, and negligent repair. The jury found in favor of the Bensons, awarding Jim $160,000 and Shirley $25,000, attributing negligent design to TECO and negligent repair to Hobbs. The defendants appealed, challenging the sufficiency of evidence, jury awards, evidentiary rulings, and jury instructions. The appellate court affirmed the trial court's judgment, finding material evidence to support the jury verdicts.

Product LiabilityNegligent DesignNegligent RepairWorker InjuryAerial DeviceWeld FailurePermanent ImpairmentCompensatory DamagesExpert Witness TestimonyMedical Examinations
References
23
Case No. MON 225200 MON 225201
Regular
Mar 05, 2008

ERMA LESTER vs. STATE OF CALIFORNIA/BOARD OF EQUALIZATION; SCIF

The Appeals Board granted reconsideration to address the defendant's challenges to the original award, particularly concerning the application of the *Wilkinson* rule and apportionment of permanent disability. The Board rescinded the original decision, finding the *Wilkinson* rule is no longer generally applicable under *Benson* and requiring the WCJ to re-evaluate permanent disability and apportionment based on causation. The case is returned to the trial level for further proceedings and a new decision consistent with *Benson*, addressing potential issues of apportionment between the two alleged injuries.

Workers Compensation Appeals BoardReconsiderationFindings and AwardFibromyalgiaTemporary DisabilityPermanent DisabilityApportionmentWilkinson ruleBenson v. The Permanente Medical GroupLabor Code Section 4663
References
3
Case No. VNO 497801; VNO 497802 VNO 497803; VNO 497804
Regular
Feb 14, 2008

ANDREW LAVIGNE vs. COUNTY OF LOS ANGELES

The Appeals Board rescinded the prior award and returned the case for further proceedings, requiring a new WCJ to reconsider permanent disability and apportionment based on *Benson v. The Permanente Medical Group*. The WCJ must determine which Permanent Disability Rating Schedule applies to each injury and may need to further develop the medical record to ensure substantial evidence supports any findings. The decision emphasizes that *Benson*'s rule on apportionment based on causation is now binding.

Appeals BoardReconsiderationJoint Findings and AwardPermanent DisabilityApportionmentWilkinsonBensonPDRSAldiPendergrass
References
16
Case No. WCK 0069325
Regular
Jan 15, 2008

DAVID C. ERVIN vs. A. C. TRANSIT DISTRICT, GATES MCDONALD

This case concerns an injured worker who sustained industrial injuries to his right knee and low back across two separate periods. The Appeals Board rescinded the original decisions, finding that the WCJ must revisit permanent disability and apportionment calculations in light of the recent *Benson* en banc decision. The WCJ must now apply the *Benson* rule, which requires apportionment based on causation considering all potential disability contributors, not just industrial injuries.

Workers' Compensation Appeals BoardReconsiderationPermanent Disability Rating Schedule (PDRS)Multiple Disabilities Table (MDT)WilkinsonBensonApportionmentCausationAgreed Medical Evaluator (AME)Industrial Injury
References
2
Case No. ADJ780465 (GOL 0087715), ADJ2934093 (GOL 0087450)
Regular
Sep 20, 2010

JAMES SHEARER vs. ECHTERNACHT CONSTRUCTION; CIGA by CAMBRIDGE for FREMONT COMEPNSATION, in liquidation

This case concerns an applicant seeking reconsideration of findings and awards for two industrial injuries in 1998 and 1999. The applicant argued the judge erred by requiring them to prove apportionment, and that two separate awards were inappropriate under *Benson*. The Appeals Board denied reconsideration, finding the applicant had the burden to develop apportionment evidence post-*Benson*. The Board also affirmed separate awards are proper when medical evaluators can apportion disability, and that the applicant's claims of total disability were not supported by substantial medical evidence.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and AwardsApplicantDefendantIndustrial InjuryPermanent DisabilityApportionmentBurden of ProofBenson v. Workers' Comp. Appeals Bd.
References
6
Case No. ADJ800932 (OAK 0299866) ADJ2725270 (OAK 0299867) ADJ635812 (OAK 0299868) ADJ4541817 (OAK 0308810)
Regular
Feb 16, 2010

JOAN STEPP vs. COUNTY OF CONTRA COSTA

The Workers' Compensation Appeals Board granted the defendant's petition for reconsideration, rescinded the previous award, and returned the case for further proceedings. The Board found the prior decision to be insufficient regarding apportionment of disability among multiple injuries as required by *Benson*. Additionally, the Board questioned the vocational expert's analysis for a finding of total permanent disability, as it did not adequately address retraining feasibility per *LeBoeuf*. The matter is remanded for the Agreed Medical Evaluator to provide clarified apportionment opinions and for a new decision consistent with *Benson* and *LeBoeuf*.

Workers' Compensation Appeals BoardPetition for ReconsiderationIndustrial InjuriesCumulative TraumaPermanent Total DisabilityApportionmentAgreed Medical EvaluatorBensonLeBoeufVocational Expert
References
3
Case No. FRE 0197989, FRE 0200410
Regular
Feb 04, 2008

SANDRA LaPLANTE vs. WAL-MART, AMERICAN HOME ASSURANCE, AIG, FRANK GATES SERVICE COMPANY

The Workers' Compensation Appeals Board granted reconsideration and rescinded a prior award, finding that the WCJ erred by not applying the *Benson* doctrine on apportionment of permanent disability based on causation. The Board remanded the case for further proceedings to determine the percentage of permanent disability attributable to each industrial injury and pre-existing conditions, as required by Labor Code sections 4663 and 4664. The *Benson* doctrine dictates that the prior *Wilkinson* doctrine, allowing combined awards in successive injury cases, is no longer generally applicable due to the legislative intent for causation-based apportionment.

Wilkinson doctrineBenson v. The Permanente Groupapportionmentcausationsuccessive industrial injuriescumulative traumaspecific injurypermanent disability ratingmedical examiner reportcompensable consequence
References
9
Case No. MISSING
Regular Panel Decision

Claim of Huss v. Tops Markets, Inc.

In 1985, claimant sustained a right shoulder injury while employed by Dunlop Tire, resulting in a permanent partial disability. In 1998, he re-injured the same shoulder while working for Tops Markets, Inc., leading to a new workers' compensation claim. An impartial specialist attributed 85% of the disability to the 1985 injury and 15% to the 1998 injury. Although a Workers' Compensation Law Judge initially rejected apportionment, the Board reversed and applied the 85/15 apportionment. Claimant appealed, contending apportionment was unwarranted due to his disclosure of the prior injury and lack of prior disability symptoms. The Appellate Division affirmed the Board's decision, finding substantial medical evidence to support the apportionment.

Workers' CompensationPermanent Partial DisabilityApportionmentPrior InjuryShoulder InjuryCausal RelationshipMedical Expert TestimonyBoard DecisionAppellate ReviewExacerbation
References
3
Case No. MISSING
Regular Panel Decision
Apr 10, 2003

Claim of Peck v. Village of Gouverneur

Claimant, a volunteer firefighter, sustained head, chest, and neck injuries in a 2000 work-related accident. During surgery for these injuries, cancerous growths were discovered along his spine, prompting the employer to request apportionment of his workers' compensation award. Both the treating physician and the employer-retained physician affirmed the causal relationship between the fracture and the work-related accident. The Workers’ Compensation Law Judge and the subsequent Workers’ Compensation Board both ruled against apportionment. The appellate court affirmed, citing that apportionment is inappropriate when a claimant's prior non-compensable condition did not hinder their ability to perform duties.

Workers' CompensationApportionmentVolunteer FirefighterWork-Related InjuryPre-existing ConditionCancer DiagnosisCausally RelatedMedical Expert TestimonyEmployer AppealBoard Decision Affirmed
References
4
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