by Paul Thomsen –
When SB863 went into effect on January 1, 2013, there was a chilling effect on the provision of permanent disability in psychiatric claims. Since the enactment of this Senate Bill, the applicant’s bar has been working diligently to expand the provision of permanent disability for psychiatric injuries to California workers.
SB 863’s limitation on psyche permanent disability was codified as Labor Code §3208.3 and is best expressed in paragraph (c) that “it is the intent of the Legislature in enacting this section to establish a new and higher threshold of compensability for psychiatric injury under this division.” The Legislature limited the provision of permanent disability and provides that there shall be no increase in disability for “psychiatric disorder, or any combination thereof, arising out of a compensable physical injury.” In other words, an applicant cannot get permanent disability for psyche if it is secondary to an orthopedic injury.
There are some exceptions to this prohibition. Here, we are discussing Labor Code §4660.1(c)(2)(B) applying to “[a] catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.”
Recent en banc decision Wilson v. State Cal Fire, 84 Cal. Comp. Cases 393, 2019 Cal. Wrk. Comp. LEXIS 29 (W.C.A.B. May 10, 2019) discussed and expanded the definition of “catastrophic injury” for the purpose of extension of additional permanent disability to an injured worker.
The applicant was injured while employed as a firefighter by the Department of Forestry in a firefight in the Lompoc area. The applicant suffered accepted injuries to his lungs, psyche, left eye, head and brain while not wearing a breathing apparatus with disputed compensability for heart and circulatory systems. The defendant disputed liability for permanent impairment for the applicant’s psychiatric injury. Two days later, the applicant sought medical treatment via Sierra Vista Hospital in San Luis Obispo with significant complaints. The next morning, the applicant was driven to Kaiser with difficulty breathing, blisters on the back of his ears, and ulcers in his throat and mouth. While at Kaiser he was put on oxygen and transferred to the Antelope Valley Hospital. While at Antelope Valley Hospital, the applicant was admitted to the ICU and “stayed in the hospital for approximately 2 weeks, during which time he was intubated and put on a mechanical respirator.” Id. at 396.
In addition to significant numbers of non-psychological medical-legal evaluations, the applicant was evaluated by Dr. Joseph Walsh, Ph.D. in the capacity of psychological QME. Dr. Walsh diagnosed the applicant with post-traumatic stress disorder (PTSD) and a severe major depressive disorder which were considered predominantly caused by actual events of employment. Dr. Walsh assigned causation 100% of the PTSD to the actual injury. The depression was 75% related to the PTSD and 25% related to no longer being able to continue work as a firefighter. Dr. Walsh went on to offer the opinion that the injuries should not be barred by Labor Code §4660.1 because he felt the injury was a catastrophic injury. The applicant was afforded a GAF of 47 which equates to a WPI of 36%. 90% was apportioned to the effects of employment and 10% to the reaction to not being able to be employed as a firefighter.
Within his report, Dr. Walsh provided the following history: “described feeling emotionally traumatized following his symptoms resulting from the fire and by his near death experience in the hospital following his injury. As reported above, he believes that he has [*405] a serious physical injury that may kill him, shorten his life or send him back to the hospital. He has a vivid memory of waking up while he was intubated at the hospital and this is re-experienced in a recurring nightmare approximately 2 to 3 times each week.” Id. at 404-05.
At trial the WCJ did not award any increased permanent disability for the psychiatric injury, interpreting the Code to mean “[i]t is not the consequences of an injury that are catastrophic but the injury itself.” Id. at 401.
In an en banc holding, the court offered the following:
“For the reasons discussed below, we conclude that applicant’s injury was catastrophic and he may receive an increased rating for his psychiatric injury under section 4660.1(c)(2)(B).”
“[I]ndustrial injury was serious and life-threatening… Applicant presented to the hospital with multiple symptoms in several body parts… He was placed in a medically-induced coma and suffered both renal and respiratory failure. During his hospitalization, he also [*416] suffered from tremors. Applicant was intubated, placed on oxygen for an extended period and remained in the hospital for approximately two weeks before being discharged.”
“The medical reporting shows that applicant continues to suffer from the effects of his injury and that it substantially impacts his ability to perform ADLs. The medical-legal evaluators consistently reported complaints of persistent fatigue, shortness of breath, weakness, inability to lift and difficulty walking long distances or running. He was diagnosed with impaired cognition and memory, as well as continued difficulty with sleep. The injury also impaired his vision.”
“The evidence therefore supports that the intensive treatment and the lasting impact of the injury on applicant have resulted in a catastrophic injury. Applicant’s injury is not the type of questionable claim of disability that the Legislature sought to preclude from an increased impairment rating. Consequently, applicant may receive an increased impairment rating for his psychiatric injury under section 4660.1(c)(2)(B).”
“In conclusion, we hold that determination of whether an injury is catastrophic under section 4660.1(c)(2)(B) focuses on the nature of the injury and is a fact-driven inquiry. We will rescind the F&A and substitute a new F&A to include a finding of fact that applicant sustained a catastrophic injury and may receive an increased impairment rating for his psychiatric injury. The issues of permanent disability and apportionment will be deferred. The matter will be returned to the trial level for further proceedings consistent with this opinion.” Id. at 415-16.
From the above case, it is clear that the question whether increased disability for a psychiatric injury where there are compensable physical injuries is a question of fact. As such it is within the authority of the judge to determine whether the additional impairment for a psychiatric injury is appropriate.
Unfortunately, in this rather significant decision, the court did not provide a clear bright line rule for the determination of whether the applicant should be awarded additional permanent disability. Per the holding in this case, it appears that a combination of the intensity of the treatment, prolonged hospitalization with intubation and medically induced coma along with the lasting impact of a career-ending injury for an applicant who was 28 years old was sufficient to be determined by the court to meet the requirements of section 4660.1(c)(2)(B).
It remains to be seen whether a similar injury not requiring some portion of the treatment, or for which the applicant could return to work in the same capacity, regardless of the treatment, would be deemed catastrophic by the court.
The primary take away from this case is that the court can find a “catastrophic injury” secondary to factors that are not the direct event of injury, but rather secondary to the effects of treatment when combined with the lasting impact of the injury on the applicant’s life, though it is within the court’s discretion to find additional impairment with a finding that the injury is catastrophic per section 4660.1(c)(2)(B).
Therefore, when preparing for litigation, it is a good practice to ensure the facts are clearly identified as to the nature of the treatment and the impact of the injury/treatment on the applicant’s life. Evidence of mitigating factors through testimony and written evidence may help reduce exposure to psychiatric permanent disability from an allegedly catastrophic injury and ready the case for submission.
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