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C&R’d Ortho Injury Contributes to Psyche Causation

Happy Friday the 13th, dear readers!

Do you guys like psyche cases?  I do! One would be crazy not to (get it?).

In a case that had somewhat of a “crazy” result for defendants recently, the Court of Appeal denied review of the WCAB’s decision upholding a finding of compensability, after applicant amalgamated the psychiatric conditions resulting from two orthopedic injuries to justify a predominant cause of the psyche claim.

The case is that of Van Dyk v. California Dep’t of Corrections and Rehabilitation.  Applicant sustained a back injury in 2005 and then filed a CT claim through 2012 to his back AND psyche – the latter of which was denied by the defendant.

The psyche PQME found that the predominant cause was the combined results of applicant’s two orthopedic injuries, allowing applicant to claim that the psyche injury survived the threshold test of Labor Code section 3208.3(b), in that actual events of employment were predominant as to the causes of the psychiatric injury.

Your humble blogger did a basic EAMS search and, without revealing the case number, found a case that seemed to match the information available, reflecting that a C&R was approved for the 2005 injury back in 2009.

But the PQME in the second claim found that the psychiatric consequences of the 2005 injury contributed to the 51% threshold for making this a compensable claim.

Picture this, dear readers: yes you can C&R your orthopedic case, but if an applicant should ever decide that his or her orthopedic injuries… even the memory of the orthopedic injury, should cause a psychiatric condition, the C&R would serve as no shield for the defense.  Who would settle potential exposure for 104 weeks of temporary disability if those same weeks are on the table for psyche instead of ortho injuries?

But that’s what’s happening here: a case that was presumably the subject of a compromise and release is being used to justify a psyche claim.  Absent a finding by the PQME that the non-C&R orthopedic injury is causing 51% of the psyche claim, this should have been barred by Labor Code section 3208.3.

And with that, dear readers, I wish  you a wonderful weekend!

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