WCDefenseCA

Labor Code § 4600, as part of California’s Workers’ Compensation system, imposes on employers, through self-insuring or through workers’ compensation insurance, to provide injured workers with medical treatment “reasonably required to cure or relieve the injured worker from the effects of” the injury.

But a person can be injured in more ways than one: an industrial shoulder injury and a non-industrial knee injury or an industrially injured respiratory system but non-industrial impairment of the circulatory system.  Does section 4600 turn an industrial injury into a ticket for medical buffet?  All indications point to section 4600 being ripe for abuse in this regard.

A recent panel decision denying reconsideration in the case of Hammerly v. Carrows Restaurant, in which applicant hurt her back.  The injury was accepted, and the agreed medical evaluator recommended psychological treatment to address persistent pain problems following a surgery performed on the injured area.  Applicant testified during her deposition that she had not filed a claim for injury to the psyche, nor did she intend to.

Defendant then argued that psyche treatment is unwarranted without applicant’s meeting the predominant cause standard of Labor Code § 3208.3.  Section 3208.3(b)(1) states that “in order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury.”

Until applicant had met her burden of proof, argued Defendant, she was not entitled to any psychiatric treatment.

The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board were not persuaded by this argument and instead held that section 3208.3 does not limit the application of section 4600.  Because treatment of a non-industrial impairment is necessary to relieve the effects of an industrial injury, the employer must pay for this treatment.

In other words, if an applicant’s non-industrial obesity makes surgery for an industrial injury less safe, applicant is suddenly entitled to a “free” gym membership, or perhaps even an at-home gym.

If applicant’s non-industrial depression makes physical therapy ineffective, applicant becomes entitled to psyche treatment.  Perhaps applicant is even entitled to a ramp on his vacation home.

So long as an applicant’s attorney can persuade a panel qualified medical evaluator or an AME to link the symptoms of a non-industrial injury with an industrial one, applicant becomes entitled to free medical care (not free to the employer, of course, just free to the applicant).

This, of course, translates to more leverage for the applicant to demand a higher settlement by compromise and release, forcing defendants to choose between paying the Danegeld or enduring a scorched Earth campaign.  Neither is appealing, especially when faced with a sympathetic evaluator.

The best way out of this trap is solid advocacy – the attorneys in the Hammerly case put forth a good argument, but sadly it did not work, despite its obvious merit.  The key battles appear to be in the initial selection of a QME and the persuasive depositions that follow.