California Workers’ Compensation Law recently changed to limit Injured Workers from claiming psychiatric permanent disability arising as a compensable consequence injury. For example, if an Injured Worker hurt their back lifting a box at work and, as a result of the back pain, developed a psychiatric depression, the permanent disability relating to the depression would not be considered as part of their permanent disability award. The claim for psychiatric permanent disability from that claim would be barred as it does not fit within the legislative exceptions.
This article will discuss the compensable consequence psychiatric permanent disability injury concerning catastrophic injuries.
What Is The Law Concerning Psychiatric Permanent Disability Arising Out Of A Compensable Consequence From A Physical Injury?
For Injuries on or after 1/1/13, Labor Code Section 4660.1 (c) (1) provides “ [e]xcept as provided in paragraph (2), there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury. Nothing in this section shall limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction, or psychiatric disorder, if any, that are a consequence of an industrial injury.
(2) An increased impairment rating for psychiatric disorder shall not be subject to paragraph (1) if the compensable psychiatric injury resulted from either of the following:
(A) Being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3.
(B) A catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.
In sum, victims of violent acts or direct exposure to a significant violent act have the Courts have rendered some opinions concerning. Of interest in this article is the interpretation and application of Section (2)(B) as to what constitutes a catastrophic injury.
How Do the Courts Now Define Catastrophic Injury?
The definition of Catastrophic in this Labor Code Section is very important. As a result, the Workers’ Compensation Appeals Board issued an En Banc decision discussing their interpretation of the term “catastrophic” for the Labor Code Section and its application.
In Wilson vs. State of California 2019 Cal.Wrk.Comp LEXIS 29, the Court ruled on the specific case that the Applicant had, in fact, sustained a catastrophic injury. The Appeals Board laid out its analysis and indicated that the determination of whether an injury is catastrophic under section 4660.1(c)(2)(B) is to be a fact-driven inquiry.
“Section 4660.1(c)(2) permits an increased impairment rating “if the compensable psychiatric injury resulted from” a catastrophic injury. (§ 4660.1(c)(2), emphasis added.) If the psychiatric injury is a compensable consequence of the physical injury, the statute’s language reflects that the psychiatric injury must result from a catastrophic injury in order for the employee to receive an increased rating for the psychiatric injury. This indicates that the inquiry into whether an injury is catastrophic is limited to looking solely at the physical injury, without consideration for the psychiatric injury in evaluating the nature of the injury. The injury must, therefore, be deemed catastrophic independent of the psychiatric injury.”
The Court went further to law out considerations that are to be made in this fact-driven analysis. “A fact-driven analysis of whether an injury is catastrophic may encounter a range of circumstances beyond the statutorily specified injuries covered by section 4660.1(c)(2)(B). There are factors the trier of fact may consider in determining whether an injury may be deemed catastrophic. These factors include, but are not limited to, the following, as relevant:
1.The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve from the effects of the injury.
2.The ultimate outcome when the employee’s physical injury is permanent and stationary.
3.The severity of the physical injury and its impact on the employee’s ability to perform activities of daily living (ADLs).21
4.Whether the physical injury is closely analogous to one of the injuries specified in the statute: loss of a limb, paralysis, severe burn, or severe head injury.
5.If the physical injury is an incurable and progressive disease.
Not all of these factors may be relevant in every case and the employee need not prove all of these factors apply in order to prove a “catastrophic injury.” This list is also not exhaustive and the trier of fact may consider other relevant factors regarding the physical injury. In determining whether an injury is catastrophic, the trier of fact should be mindful of the legislative intent behind section 4660.1(c).”
Why Was Mr. Wilson’s Injury Catastrophic?
There were a number of factors in Mr. Wilson’s case that made it catastrophic. His initial treatment was serious and life-threatening. The treatment involved hospitalization and a medically-induced coma. Absent his psychiatric disability, he rated out to 66 percent permanent disability. Further, he was left with significant medical problems which substantially impacted his ability to perform ADLs (Activities of Daily Living.) Finally, the Injury essentially ended his career at a very young age (28.)
Now that the WCAB has rendered their opinion, there are many questions that arise. How much weight, if any, will be used if an injury is career ending? My personal concern is whether the WCAB will value the loss of one’s career, vocation and occupation in any capacity. There are many jobs that require significant education, training or apprenticeship. For some of these occupations, a relatively small injury can be career ending. For example, a Concert Pianist might break a finger and prevent them from working. To those who appreciate the time and effort to reach such a professional level, the fact that it is taken away would surely believe that injury is a catastrophe. Similarly, a plumber suffering from an occupation ending knee injury should likewise be considered as a catastrophe. It is unclear from the WCAB decision as to whether a Workers’ Compensation Judge would be able to make a finding of catastrophe with respect to these two examples. That, in my opinion, to not value the loss of one’s career or vocation, would be a catastrophe!
What If I Need Advice?
If you would like a free consultation regarding your workers’ compensation claim, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 26 years. Contact us today for more information.