WCDefenseCA

Happy Friday dear readers! 

You know what this humblest of blogs needs? More posts on catastrophic injuries, that’s what!

So, of course, I bring you the recent panel decision in the matter of Hernandez v. Valley Transit Authority, where applicant sought reconsideration to get an award of additional PD for a psychiatric component of an orthopedic injury.

So, before we get into the facts of the case, a bit of background!

Way back when (specifically, in 2012, effective January 1, 2013), SB-863 was passed into law, once again reforming our beloved workers’ compensation system.  This was back before COVID and vaccines and ZOOM depositions and remote trials.  Those were wild times!

Well, part of SB863 was the addition of Labor Code section 4660.1, which barred permanent disability for compensable consequence psyche injuries in the absence of (1) being a victim of a violent act; (2) being directly exposed to a significant violent act; or (3) “a catastrophic injury, including but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.” 

Your humble blogger remembers when a compensable consequence psyche was plead in almost every application, but then suddenly stopped when SB-83 went into effect.  For some reason the applicants’ bar almost entirely stopped pursuing those totally legit and not in any way exaggerated claims once there was no PD available.  Nowadays, those add-ons are a lot less frequent.

Your humble blogger has posted a few times about past usage of the term “catastrophic”, so now let’s turn to the Hernandez decision.   Applicant sustained an injury to the back and hip after slipping on wet tracks and hitting his hip on a railroad tie.  This occurred as applicant was trying to get out of the way of a train coming down the tracks upon which he was working. 

What do you get when you combine a train and “CATastrophic”? This…

AOE/COE was not in dispute, but the question pending was whether the injury qualified under Labor Code section 4660.1’s exceptions to barring psychiatric permanent disability.

The Trial Judge found that this injury was NOT a violet act, nor was it catastrophic.  The WCJ rejected the claim that the mechanism of injury was a “violent act”, rejecting the string of cases that interpreted “violent act” to include a “forceful blow”, but as to catastrophic injury, the WCJ relied on the analysis in the en banc WCAB decision in Wilson v. State of California; Cal Fire which in pertinent part measured “catastrophic” depending on the intensity and seriousness of treatment, ultimate outcome upon achieving P&S, and severity of impact on applicant’s activities of daily living. 

The WCJ determined that applicant’s serious treatment pertained mostly two his two back surgeries, including a fusion, and the prospect surgery in the future to remove hardware from his spine.  The activities of daily living limited ambulation but were not severely impacted as to walking short distances, sitting for an hour at a time, and self-care/grooming.  Finally, the permanent disability rating placed applicant’s back condition in category IV of Table 15-3 of the AMA Guides (DRE Lumbar Spine) and not in the highest category. 

Accordingly, the WCJ found that the injury did not rise to the level of “catastrophic” and any additional permanent disability stemming from the psychiatric conditions applicant sustained are barred.

The WCAB, on applicant’s petition for reconsideration, agreed with the trial judge and denied the petition.

Query for you, dear readers – what if this was NOT a compensable consequence claim?  What if applicant had alleged a psychiatric injury directly from having to avoid the train and falling?  Certainly, an argument could be made that the experience of falling while trying to avoid a coming train could have caused its own terror and resulting psyche injury, no?

Well, SB-863 does not bar “pure” psyche claims from generating additional PD, but the record would require a med-legal opinion to that effect, and a psyche med-legal can reasonably conclude, in most cases, that the predominant cause of a psychiatric condition is not the specific mechanism of injury, but the resulting orthopedic medical treatment and residual effects from the injury.

Have a good weekend, dear readers!