WCDefenseCA

Happy Monday, dear readers!

Do you recall that crazy rant your humble blogger went on?  The one about the new psyche rules?  By way of recap, SB-863 amended the Labor Code to restrict psyche claims (see section 4660.1) to prevent increase in impairment for compensable consequence psyche claim, but to outline that medical treatment would still be allowed.  Thus far, the Labor Code has remained fairly silent on the question of temporary disability – if an injured worker can’t get an increase in permanent disability because of a compensable consequence psyche claim, but CAN get medical treatment… what’s the deal with temporary disability?

I bring you the case of Hernandez v. Fremont Bank and Federal Insurance, a recent panel decision that denied defendant’s petition for removal, adopting and incorporating the WCJ’s opinion.  The basic situation here was that applicant alleged a psyche injury following orthopedic injuries.  When applicant requested a psyche panel, defendant objected and a trial was had on whether or not applicant was entitled to a psyche panel.

Citing 4660.1, defendant argued that psyche injuries were no longer compensable.  By contrast, the WCJ noted that “the appropriate procedure to resolve a dispute over injury is to utilize the panel [QME] … [t]he fact that compensation for a permanent psychiatric impairment is not available to this injured worker does not deprive her of her potential right to medical care or, for that matter, temporary disability indemnity on a psychiatric basis.”

So, what’s the basis for allowing temporary disability based on a compensable consequence psyche claim?  The labor code speaks of disallowing permanent disability.  The labor code speaks of allowing medical treatment.  The Labor code is silent on temporary disability.

Your humble blogger, not unlike the weather-man who can tell you if it’s currently raining, anticipates that this might prove an issue going forward.  Due to the code’s silence on the issue, there’s a basis to deny temporary disability benefits for compensable consequence psyche injuries.

Practically speaking – it’s very important to know.  If a defendant’s potential liability for a psyche claim is limited to some psychiatric treatment or visits from a psychologist, it might not be worth the effort to resist the claim – in fact, visits with a psychologist or a psychiatrist, produce some interesting reports, and can often lead to discovery of prior injuries or claims, or subsequent employment that doesn’t come out (for one reason or another) at deposition.

On the other hand, if there’s potential for up to 104 weeks of temporary disability benefits (ranging from $17,603.04 to $117,356.72 for 2016 injuries), a defendant might have more incentive to fight the claim in its entirety – the panel disputes, the need for treatment, the liability for temporary disability benefits at all… as always, it is the uncertainty that does the damage to the billfold.

I guess we’ll see what happens, dear readers.

What’s your experience, so far?  Are you paying out TTD in compensable consequence psyche cases?  Or are you cowboying and cowgirling up and fighting TTD benefits tooth-and-nail?