Happy Wednesday, dear readers! You know, sometimes your humble blogger has to take a break from his usual hamster wheel of workers’ comp defense to reflect on what a truly blessed childhood he had. For example, there are people in this world that did not have the absolute privilege of growing up with a toy like Stretch Armstrong.
Stretch was exactly that – a super elastic wrestler toy, and every child who played with it inevitably asked the fundamental question: just how much could Stretch Armstrong be stretched?
Well, now we’re all grown-ups and we have the grown-up version of Stretch Armstrong: workers’ compensation law. How far can you stretch workers’ comp? Well, as it turns out, even though our beloved swamp will stretch, and stretch, and stretch… it does have a limit. Though rarely seen, it is there!
That brings me to the recent panel decision of Gomez v. State of California Department of Corrections. Therein, applicant argued that “the behavior of [her] husband in response to her positive TB test constitute actual events of employment for the purposes of determining causation under Labor Code section 3208.3.”
Yeah, I had to read that a few times to follow it myself, so if it doesn’t make sense right away, or if you find yourself squinting in disbelief, I’m right there with you.
Briefly, the facts are straight forward: IW tests positive for tuberculosis and the claim is accepted as industrial. She gets a nine-month course in treatment. Her husband doesn’t respond to this well and the marriage falls apart, and, ultimately, there’s a divorce. The psyche QME concluded that the predominant cause of her psychiatric impairment was the response of her husband, which, in turn, was due to her industrial injury.
Of course, that means that the predominant cause of the psychiatric compensable consequence was the industrial injury, right?
Now, of interest here, is that the psychiatric condition was NOT caused by the diagnosis of or the treatment for the tuberculosis, but purely how applicant’s husband reacted to the diagnosis, and, presumably, applicant’s reaction to her husband’s reaction.
The matter proceeded to trial and the WCJ agreed and found the psychiatric injury to be a compensable consequence. Naturally, defendant sought reconsideration.
The panel first started by citing Rodriguez v. WCAB for a definition of a compensable consequence: “a secondary incident which, although perhaps a new and distinct injury, is not a new and independent injury but rather the direct and natural consequence of the primary incident.” (emphasis added by WCAB panel). The commissioners then reasoned that because Labor Code section 3208.3 imposes a higher threshold of compensability for psychiatric injury, the reaction of applicant’s husband to her industrial injury “was not a ‘direct and natural’ consequence of her industrial injury. To the contrary, the WCJ in her Report characterized the reaction as ‘bizarre’…”
The commissioners reversed and entered a finding that the psychiatric claim was non-industrial.
So, your humble blogger is naturally pleased with the result – this is a stretch too far and the conclusion is a proper one. But what if we tweaked the facts a little bit? Let’s say a hypothetical applicant is in the same scenario, but the hypothetical applicant’s spouse reacts with domestic violence resulting in serious injury. There is no higher threshold for orthopedic injuries as there are for psychiatric ones, so does a compensable consequence broken arm as a result of an angry spouse’s attack become admissible?
The cited language in Rodriguez seems to militate against such a finding – do we, as a society, expect that the direct and natural consequence of an injury is to incur violence from a spouse of family member? I would think not and would certainly hope not.
What do you think, dear readers? How far does the “Compensable Consequence Stretch Armstrong” toy really stretch?
Straight on to Friday, dear readers!
