Alrighty, dear readers, we made it through another week! Congratulations.  If you make it through this Friday the 13th, you will deserve twice the congratulations!

Often enough, the fun ride we on the defense have to endure in California’s workers’ comp system can lead to filing a psyche claim (thus perpetuating the system…)

Speaking of psyche claims, one of your humble blogger’s beloved readers let me know about a recent panel decision, Kessler v. Gallo Winery.  Applicant stipped out a back injury from 2011, and then filed a timely petition to reopen for new and further disability because his condition has allegedly worsened.

Applicant then filed a CT injury to his back and to the psyche.  Defendant contested the psyche and the matter proceeded with the usual course of litigation.  The psyche AME concluded that 90% of the psychiatric injury was caused by his work (and injuries resulting from work) but that the causation should be split three ways as to the specific, the CT, and a prior injury form 1989.

When the WCJ found a compensable psyche injury, defendant sought reconsideration arguing that since no individual injury could meet the predominant cause standard of Labor Code section 3208.3, there could not be a compensable psyche claim.  After all, since predominant cause is more than 30%, isn’t the defense set here?

The WCAB rejected the argument, reasoning that the crux of the matter lay in comparing causation of permanent disability for apportionment vs. causation of injury.  By the WCAB’s reasoning, because 90% of the psyche injury was industrially caused, the threshold was met and the psyche claim should have been compensable.

Now, I’ll be the first to admit that I don’t know the first thing about workers’ compensation law or the Labor Code, but your humble blogger can’t seem to follow the logic here.

A long, long time ago, your humble blogger posted the case of Monty Lewis v. WCAB, a 2011 panel opinion in which the WCAB concluded that when causation of a psyche claim was 35% caused by one employer and 65% caused by a subsequent employer.  Applicant was defeated in his claim against the first employer because there was no predominant cause and the second employer raised the 6-month rule to bar the psyche claim.  So the applicant gets nothing… NO SOUP FOR YOU!

But Kessler got soup – why?  Clearly, in the Monty Lewis case, the psyche injury was 100% industrial, it was just carved up by different employers.  In Kessler, the 90% industrial causation was carved up by different dates of injury.  What’s the difference?

Well, employers can only be held liable for the injuries sustained during the tenure of their employment of the applicant.

In any case, the authority on this doesn’t seem that iron clad – from what your humble blogger could pick up from a check of the practice manual, the authority that multiple injuries for the same employer can be combined to satisfy the predominant cause requirement is from writ denied and panel decisions – hardly binding authority (the case cited by the WCAB in Kessler was a writ denied opinion as well).

What do you think, dear readers – is this a losing battle, or should we be encouraging taking this up to the Court of Appeal to get a binding opinion on this issue?  Given the Court of Appeals’ track record in rejecting “but this is just the way we do things in workers’ comp” as a guideline for interpreting the law, I am naively optimistic that we would get a positive result.

Have a good weekend!