Guess what, dear readers? I’m baaaaack! Thank you all for the kind e-mails and LinkedIn messages inquiring about my health and whether I would be returning. Rest assured, dear readers, the reports of my death are greatly exaggerated.
Now, you might wonder what I’ve been doing all this time. Well, I’ll gladly tell you. As you will recall, towards the end of 2012, the California legislature passed SB-863 which, among other things limited increases in permanent disability as a result of compensable consequence psyche cases. One exception to this limitation is, of course, catastrophic injuries which, much to the frustration of your humble blogger, remained undefined.
Well, I decided to set out on a quest to find the answer. I swam across raging rivers, climbed up mossy mountains, and fought my way through swamps riddled with R.O.U.S.s, just to meet with a legendary wise man. Observing the protocol of the area, I sat in his hut, cross-legged on the floor, until he acknowledged me and let me ask him one question. So that’s what I did.
“Oh wise man” I asked, “how do we know when an injury is catastrophic in California’s workers’ compensation system.”
He looked at me for a moment and then sighed. Then he told me something I will never forget: “Sir, this is my house. You can’ just come in here and sit on my floor. Also, what is workers’ compensation? Is that like employment law?”
Needless to say, the trip was not as productive as I hoped.
To add insult to injury, when I returned from my travels, I learned that the WCAB had already addressed this issue in the en banc decision of Wilson v. Sate of Ca Cal Fire.
In Wilson, applicant was a firefighter who inhaled dangerous fumes and was hospitalized for two weeks. Afterwards his condition deteriorated, and he started having seizures and needed more hospitalizations and treatment. The claim itself was accepted by defendant denied the compensable consequence psyche claim.
The matter proceeded to trial and the WCJ sustained the denial of psyche, advising that this was not a catastrophic injury. Facing the same problem visited upon judges with some frequency, including the U.S. Supreme Court, the WCJ noted that he would know catastrophic injury when he saw it, and this wasn’t it.
On appeal, the WCAB entertained several theories on defining catastrophic injury. First, the WCAB noted that there was no violent act because this was fume inhalation, and not a “forceful blow.” The WCAB also rejected the theory that this was pure psyche, as the medical-legal reporting opined the psychiatric injury was from the repeated hospitalization rather than the original mechanism.
Then the WCAB moved to determine whether this was catastrophic. The defense proposed permanent total disability as the standard, but the WCAB rejected this theory because what would be the point in an increase in PD due to psyche if applicant was already at 100%?
The WCAB also rejected applicant’s theory that a catastrophic injury was measured by loss of some or all earning capacity.
Ultimately, the WCAB advanced a fact-based inquiry with various factors to consider:
- Intensity/seriousness of treatment received for the injury;
- Ultimate outcome when employee’s physical injury is P&S;
- Severity of physical injury; impact on activities of daily living;
- Whether physical injury is closely analogous to one of the injuries specified by the Labor Code (amputation, paralysis, etc.); and
- If physical injury is an incurable and progressive disease.
In applying the factor to the Wilson case, the WCAB noted that the purpose in the reform was to weed out the automatic add-on psyche claims that were essentially frivolous. We all know those applicant firms that always alleged psyche, sleep loss, and gastro-intestinal issues on EVERY SINGLE APPLICATION.
In this case, the WCAB did not consider it such a case, and applied the factors above to find a catastrophic injury, thus entitling him to a PD increase for psyche.
So now we have some guidance from the WCAB on identifying catastrophic injury, and we didn’t even have to go on a quest for it!
It’s nice to be back, dear readers. I’ve missed you very much!