“You broke it, you bought it”, is a fairly accurate rule of thumb applicable to California’s workers’ compensation system. When an industrial accident results in damage to a limb (or neck, or back, or heart, etc), the defense is on the hook to provide all treatment reasonably necessary to cure and/or relieve the effects of that injury.
But can the defense really be liable for the treatment of non-industrial conditions and, if so, when?
The first part of the question is easily answered by anyone who has been in the industry for any significant period of time. While it first often comes as a shock, it is well settled than an employer may be liable for treatment even of a non-industrial condition, if treatment of the non-industrial condition is reasonably required to cure or relieve the effects of the industrial injury. So, in many cases—such as where there is a medical need for weight loss to lose non-industrial fat is a precondition to an industrial surgery—the defense is required to “belly up” 1 and pay for the gym membership and/or bariatric surgery and/or other weight loss plans.
Clearly, the defense doesn’t end up paying for all non-industrial medical expenses, even if those conditions complicate or delay treatment for the industrial condition. For example, despite having handled dozens of carpal tunnel cases involving pregnant applicants,2 I’ve never had a client stuck with an obstetrician’s bill, even if the pregnancy complicated and/or delayed the CTS treatment!
So, what is the test for determining whether the defense is liable for treatment of the non-industrial condition?
This test was clearly outlined in Doke v WCAB (2004) 69 Cal. Comp. Cases 1577 (writ denied). In what is a fascinating fact pattern, in the years following his industrial injury to his back and lower extremities, applicant became addicted to heroin and, as a result, developed hepatitis C, a condition which eventually necessitated a liver transplant. Applicant claimed his liver disease was a compensable consequence of his orthopedic injuries because he began using heroin to relieve pain.
The WCJ issued a F&A finding the hepatitis C was not a compensable consequence of the industrial injury. While this ruling may come as a shock to some jaded defense folks, consider the facts and law: The WCAB was persuaded that “heroin use was not an acceptable response to chronic pain”, that Applicant “had an extensive history to drug abuse….prior to his industrial injury”. More importantly, the WCAB concluded Applicant was legally precluded from recovering compensation for the results of intravenous heroin use and, thus, it would be inconsistent to conclude that a consequential injury could be compensable when the primary injury was not. “Therefore, here, Applicant’s secondary injury, which was caused by intravenous heroin use, was not compensable because it did not meet the statutory conditions of compensation under Labor Code 3600(a)(4) (injury caused by unlawful use of a controlled substance is non-compensable), Labor Code 3600(a)(5) (intentionally self-inflicted injury is non-compensable, and Labor Code 3600(a)(7) (injury caused by commission of a felony is non-compensable)
Nevertheless, the WCJ ordered that the defense be liable for treatment of the liver because such treatment was a necessary prerequisite to further orthopedic care, which Applicant required but could not have until a liver transplant was performed. He noted that “when treatment for a non-industrial condition is required to treat an industrial condition, the employer is liable for treating both conditions.”
Agreeing that the hepatitis was not a compensable consequence, the WCAB reversed the WCJ on the issue of liability for treatment. While the WCAB agreed Applicant was in need of further medical treatment reasonably required to cure or relieve from the effects of his industrial injury, he was not entitled to treatment for his liver disease.
The WCAB cited Myers v W.C.A.B. (1994) 59 CCC 1104 (writ denied) and Melynk v W.C.A.B. (1990) 55 Cal. Comp.Cases 357 (writ denied), noting that “Applicant’s need for a liver transplant in the instant case was independent and separate from his industrial injury in that it would be required, even absent the industrial injury….”
Thus, here’s the test: Is the need for treatment of the non-industrial condition independent and separate from the industrial injury in that it would be required, even absent the industrial injury?
Non-industrial pregnancy “independent and separate” from the industrial CTS?
You bet! That baby is a “condition” that will need to be addressed “even absent the industrial injury”
Non-industrial liver disease “independent and separate” from an industrial back injury?
Of course! That liver is a “condition” that will need to be addressed “even absent the industrial injury” (if applicant wishes to live, that is!)
Need to lose non-industrial weight before undergoing an industrially-related knee surgery “independent and separate” from the industrial knees?
Donald R. Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B’s Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides (5th) and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at email@example.com.
1 Sorry, couldn’t help myself!
2 Does anyone see a pattern here?
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