WCDefenseCA

Here we are dear readers! Rounding out another week and welcoming the first Friday in June.

Your humble blogger knows that you’re one foot out the door to start the weekend, but has a quick blog post to offer you before you do just that: the panel case of Sosav. Race Engineering, Inc.

Applicant claimed injury to his hand, psyche, intern system, skin, gastrointestinal system and sleep as a result of an admitted injury, but defendant only accepted the hand.  The parties proceeded to trial and the main issue that went up on appeal is whether psychiatric permanent disability was compensable and could be combined with permanent disability for the hand injury.

So a bit of background – as we all know from studiously reading this most humble of blogs, in 2013 the California Legislature enacted SB863 which added Labor Code section 4660.1, incorporating the following language in 4660.1(c)(1): “Except as provided in paragraph (2), there shall be no increase in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination therefore, arising out of a compensable physical injury.”

However, in January of 2020, section (c)(1) was amended to reflect “the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase.”

So we went from “there shall be no increase in impairment rating” to “shall not increase.”  Applicant’s counsel in the Sosa case took the position that this amended reflects that impairment ratings for those conditions shall not be increased by a factor of 1.4, and orthopedic injuries shall, so PD for psyche is recoverable as part of the 2020 amendment to Labor Code 4660.1.

The trial judge and the WCAB were not persuaded.  Looking at the Legislative Counsel’s digest on the amendment, said amendment was described as making “nonsubstantive changes.”

Applicant also argued that the psychiatric condition was what is colloquially called a “pure psyche” claim, resulting from the mechanism of the orthopedic injury rather than a compensable consequence.   The WCAB rejected this as well as the reports in the record acknowledged predominant industrial causation, but did not specify if that causation was a compensable consequence or directly from the result of the mechanism of injury. 

As such, the claimed additional permanent disability for the psychiatric condition was not awarded.

All in all, a good result, no?

So, what can we take away from this as the adventure of Friday night is calling to us?

Based on the Sosa decision, it appears that the amendment to 4660.1 is “nonsubstative”, meaning that we still do not allow increases in PD for compensable consequence psyche cases other than for narrow circumstances (such as violent acts). 

Also, it is applicant’s burden to prove that the psychiatric condition is not only predominantly caused by actual event of employment, but it is likewise applicant’s burden to prove that the psychiatric condition is predominantly caused by the mechanism of injury, rather than a compensable consequence of an orthopedic injury.  We can also infer from the Sosa decision that, at least the Sosa panel, was not inclined to order further development of the record in this case.

Have a great weekend, dear readers!