WCDefenseCA

Happy Friday, my dear readers!

Before we all check out for the weekend, I think it only fair to report to you that, at long last, we have new guidance on the meaning of the word “violent” when it comes to post-1/1/13 compensable consequence injuries for psyche add-ons, thanks to a recent Court of Appeals decision,

As practitioners from the pre-SB-863 days will remember, every single orthopedic injury came with sexual dysfunction, sleep loss, and psyche compensable consequence claims in an effort to frivolously drive up exposure and litigation costs.  SB-863 sought to put an end to that by eliminating permanent disability for such claims, limiting permanent disability in such cases only to psyche claims, and then again, only when the injury involves (1) being a victim of a violent act; (2) being exposed to a significant violent act; or (3) a catastrophic injury.  (See LC 4660.1)

For years, violence was defined as one would expect – a criminal act intentionally committed by another person.  However, as early as 2016 the WCAB expanded the scope of a “violent act” to include a forceful blow, such as falling on a hard floor.  Well, almost every slip-and-fall case became a “violent act” in that sense.

Well, just yesterday afternoon the Court of Appeal for the 4th District issued its published decision in Christrock Entertainment v. WCAB (Smith).  In the Smith case, applicant was a fight promoter who had recently started living in the Bel-Aire neighborhood of Los Angeles and attended a show as part of his job duties.  Inexplicably, he became emotionally distraught at some of the performance.  The next morning he noticed he had a sore back and significant bruising on the palm of his right hand, which he attributed to the poor ergonomic set-up of the audience seating.  He filed a claim for orthopedic injury to his low back (the bruising on his hand resolved shortly thereafter) but also filed a psyche claim as a compensable consequence, alleging that he felt that the impact of observing the show was so violent towards him that he was entitled to additional compensation for his psychiatric trauma.

At a psychiatric PQME evaluation, the evaluator noted that applicant was making wild claims that he had been recruited for an organization who is tasked with keeping the existence of extra-terrestrial visitors to the planet Earth a secret.  He also made bizarre claims that the Earth was going to be attacked on Independence Day but that he was prepared to help defend it.

The WCJ and WCAB both rejected the claims for additional PD based on psyche, relying on LC 4660.1 and noting that an act of violence, though watered down by including any “forceful blow,” did require some sort of strike or impact: even a slap.  But on applicant’s petition for a writ of review, the Court of Appeal reversed!

Citing recent theories from such academic institutions as UC Berkeley, the Court of Appeals noted that there was a growing consensus that speech, and in some cases the lack of speech, can be construed as violence.  Accordingly, if subjective feelings are sufficiently hurt, the “violent act” requirement of 4660.1 can be satisfied.  All that is required is credible testimony on the part of the applicant.  The Court cited a list of other cases that recently came to the same conclusion. 

Late last night, upon hearing about the Court’s decision, applicant made the following statement: “When this case started I felt I was being treated like one of the bad boys, but now I feel like a real prince!”

The employer, Christrock, has already stated it has no intention of seeking an appeal, which is bad news for defendant everywhere who would like to see this wrong righted. 

You can get more context here, dear readers!  Till Monday…

Your humble blogger has repeatedly expressed his frustration with the interpretation of Labor code section 4660.1(c)(1) and the “violent act” definition.

Labor Code section 4660.1 provides in pertinent part that you don’t get an increase in permanent disability for compensable consequence psyche claims unless the injury is “catastrophic” (since we don’t have a definition for this term of art, I am imaging a cat that works as an astrophysicist) or being a victim of a violent act or being exposed to a significant violent act.

The WCAB took this and ran with it to find that a violent act was just a strong physical blow, and not necessarily one of criminal or quasi-criminal nature.  So, in Larsen v. Securitas Security Services, a 2016 panel decision, a security guard accidentally struck by a car in a parking lot could claim a compensable consequence psyche injury.

The result of this line of thinking is that almost every applicant attorney claims that so long as the injury is not cumulative in nature, but a specific injury, it is, of course, a “violent act” and thus renders 4660.1(c)(1) moot.

Well, not so fast!

Reader D.Z. kindly sent me a recent panel decision in the case of Martin Garcia v. Harvest Church which seems to resist this trend.  (If you, dear reader, would also like this type of very vague and effectively anonymous shout-out, feed your humble blogger your most interesting cases via e-mail!)  Applicant therein claimed a compensable consequence psyche injury after a gate fell on his foot.  Although the left foot claim was accepted, and the psyche compensable consequence was accepted for the purpose of obtaining medical treatment, defendant disputed that the psyche claim entitled applicant to increased permanent disability.

In terms of the mechanism of injury, applicant was working on a gate when it fell on his foot.  Afterwards, applicant went and opened several more gates before reporting what happened to co-workers in the building office.  He declined to be taken to the ER and instead drove home before driving himself to Kaiser, where he underwent surgery the next day.

In rejecting applicant’s claim that the mechanism of injury constituted a violent act, the opinion of the WCAB turned on whether the mechanism of injury was “extreme or intense” comparable to other cases of this sort that did result in such a finding.  The WCAB relied instead on the case of Zarifi v. Group 1 Automotive, where the WCAB held that a violent act did not occur when walking into a glass wall did not result in the loss of consciousness or the need for immediate medical treatment.

In other words, this was not intense enough, neither in the force of the blow or the resulting medical consequences, to qualify as a “violent” act.

What does that mean for us down in the trenches?  There’s a good chance that your slip-and-fall, minor bump, less-serious specific injuries will not qualify for the psyche increase.

It also give incentive for defense attorneys to explore in greater detail the intensity of the blow and bring to a QMEs’ attention first-responder reports “Doctor, how serious was this blow at the time if it yielded these symptoms for the first responders?”

Now, all that being said, your humble blogger is a firm believer that this interpretation of 4660.1 to allow a non-criminal action to be considered a “violent” act is incorrect and defies legislative intent or even the plain meaning of the statute.

As reader W.A. pointed out previously, section 4660.1(c)(2)(A) provides that it’s not just a “violent act” but a “violent act within the meaning of Section 3208.3.”  (Emphasis humbly added).

We’ve had 3208.3 for a while, and there is a veritable Russian novel’s worth of caselaw about what “violent” act triggers 3208.3 psyche injury compensability and defining a “violent act” as a “strong physical blow” is not “within” the meaning of 3208.3 but pretty far outside of it.

Furthermore, this blog has gone on at length about prior treatment of the term by the Court of Appeal.

Unfortunately, this issue, to wit, whether a strong blow can be considered a “violent act” for 4660.1(c) will have to go up to the Court of Appeal or the good folks in Sacramento before it can be brought in line with this blog’s self-important and self-aggrandizing interpretation.

And, when that happens dear readers, I will sing you all a song that will be stuck in your heads forever: “Greg was right, you were wrong, you should have listened all along.”

Happy Friday, dear readers!

Your humble blogger encourages you to check out an excellent column by Julius Young over at workcompcentral.com on the issue of violent acts and psyche claims.

The column has to do with the recent panel decision in the matter of Madson v Michael J. Cavaletto Ranches.  Therein, a truck driver involved in an MVA claimed a psyche injury (in addition to other injuries) when he swerved on the freeway and his truck rolled over.  He was pinned in the truck.  It of course did not help matters that applicant was claustrophobic and afraid the truck would catch fire because of its full tanks of gas.  After 40 minutes or so, he was rescued and, fortunately, survived to tell the tale.

Among the issues in this case is whether the mechanism of injury constitutes a “violent act” in order to allow an increase in permanent disability based on a derivative psyche claim.  Applicant also claimed that his psyche injury was the direct result of the mechanism, rather than a compensable consequence, but let’s focus on the violent act issue.

Labor Code section 4660.1 was amended by SB-863 to eliminate increases in permanent disability (and probably temporary disability) benefits for “sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof” in compensable consequence cases.  However, subsection (c)(2) provides an exception to being a victim of a violent act or a direct exposure to a significant violent act.

The WCAB made the news not too long ago when, in the case of Larsen v. Securitas Security Services, the term “violent act” was interpreted to mean “forceful blow” and not requiring the criminal or quasi-criminal conduct of another person.

In the  Madson matter, the WCAB granted applicant’s petition for reconsideration and relied on the Larsen opinion to concluded that a violent act need not be a “volitional act set in force by a human being with at least if not intent something more than mere negligence.”

The undersigned respectfully disagrees.

Let’s start with a simple question – was it the legislature’s intent in amending the Labor Code as part of SB-863, to make it harder to file a psyche claim?  Clearly, the answer is yes – if the Legislature wanted to make compensable consequence claims as easy or easier to prosecute, then the language would have said nothing or created a presumption.  Instead, the Labor Code now raises the bar for compensable consequence psyche claims.

What effect does an interpretation of “violent act” have when it includes any “forceful blow”?  Doesn’t every single claim except a CT or perhaps the most minor of back strains fall into the category of “forceful blow”?  Every fall, every trip, every specific injury where there is forceful contact would negate Labor Code section 4660.1’s heightened requirements.

Furthermore, 4660.1 has another word to be considered: “victim.”  The exception holds that “[b]eing a victim of a violent act…” allows compensable consequence psyche claims.  And how does Black’s law dictionary define victim? “Person harmed by criminal acts, attack target.”

And, of course, let’s not forget that the term “violent act” did not original with SB-863.  “Violent act” was already in use by Labor Code section 3208.3.  In fact, Section 4660.1 incorporates the term: “violent act within the meaning of section 3208.3.”

As discussed in this prior blog post, a violent act has consistently been defined to date as a criminal or quasi criminal act by one person against another.  Forceful blow doesn’t seem to qualify.

From the looks of it, though, it appears that one of the parties has filed for reconsideration, presumably the Defendant having been newly aggrieved by the WCAB decision.  Just like the Court of Appeal’s decision in the matter of Dreher, where a published decision was necessary to confirm that a wet sidewalk was not an “extraordinary” condition, perhaps defendants will need to take this issue up to reverse a growing trend of expanding the meaning of “violent act.”

May your weekends, dear readers, be free from both violent acts and forceful blows, as your humble blogger respectfully submits the two are not one and the same.

Happy Friday, dear readers!

Did you know your humble blogger is a lifetime victim of violence?  For all my clumsy, clumsy life I’ve fallen from swings and slides, bumped into walls and fellow-pedestrians, and, once, even fell out bed while trying to deny claims in my sleep.

What’s that, dear readers? Are you saying that my perfectly sheltered life is not one riddled with violence?  Well, the WCAB would disagree with you.

The case making the rounds this week is Larsen v. Securitas Security Services, in which a post January 1, 2013 injury involving a vehicle vs. pedestrian car accident included a psyche PD add-on.  But, as we all know, Labor Code section 4660.1(c) precludes PD add-on for psyche compensable consequence claims, unless the injured worker sustains a catastrophic injury, or is the victim of a violent act or is directly exposed to a significant violent act.

But the Larsen case involves a security card struck by a car in a parking lot.  No, dear readers, this wasn’t during a get-away and applicant was not bravely stopping jewel thieves from escaping with the orphanage’s recently donated diamonds.  This was a car accident that happened to happen at work.

The WCJ found the act of the car accident as violent, and the WCAB affirmed, rejecting defendant’s theory that “violence” requires criminal or quasi-criminal violence.  Instead, the WCAB relied on Black’s Law Dictionary as defining violence as “[o]f, relating to, or characterized by strong physical force <violent blows to the legs>. 2. Resulting from extreme or intense force <violent death>.  3.  Vehemently or passionately threatening <violent words>.

The panel interpreted this to mean that being struck from behind with enough force to be violent, and render applicant a victim of a violent act.

Your humble blogger respectfully disagrees, both with the result and the reasoning.  The violent act language is not new, and did not become law as part of SB-863.  The Labor Code included “violent act” language (and still does) as part of Labor Code 3208.3(b)(2) which states “in the case of employees whose injuries resulted from being a victim of a violent act or from direct exposure to a significant act…”  and then reduces the threshold of compensability from acts of employment being “predominant cause” to “substantial cause.”

In Clacher v. WCAB (80 CCC 182), a 2015 writ denied case, the WCAB found that “violent act” included applicant being “forcefully punched on her back and knocked on the floor by a coworker.”  In Soberon v. Orange County Pizza (2013 CCC Cal. Wrk. Comp. P.D. Lexis 453), applicant was assaulted by her employer.

In Gambina v. Canyon Market(2013 Cal. Wrk. Comp P.D. Lexis 304), the “violent act” was a store robbery including the applicant being shot.

Let’s look at the opposite, though – was the threshold of actual events of employment being predominant as to all causes lowered to “substantial cause” just because the injury was a violent blow?

In Duong v. RGW Construction (2010 Cal. Wrk. Comp. P.D. Lexis 93), an injured worker fell when the scaffolding upon which he was working suddenly collapsed, resulting in spine and upper extremity injuries.  But in that case, the WCJ and the WCAB agreed: the standard for whether the compensable consequence psyche claim actually was compensable was “predominantly caused.”  If such an event, one which was caused by another co-worker disassembling the scaffolding as applicant worked upon it, could be considered a violent act… wouldn’t the standard be “substantial cause”?

Now, here’s another idea… wouldn’t an act of violence be extraordinary in the workplace? It sure is! In Wal-Mart Stores, Inc., v. WCAB/Garcia, applicant sustained an “orthopedic injury to her back” but that injury was not enough to defeat a six-moth employment rule.  But, the Court of Appeal held that “[i]n our view, the ‘sudden and extraordinary’ language is limited to occurrences such as gas main explosions or workplace violence – the type of events which would naturally be expected to cause psychic disturbances even in a diligent and honest employee.” (Footnote 9).

Well, in the recent case of Dreher v. WCAB (where the Court of Appeal ruled that a wet sidewalk was not extra-ordinary), the applicant sustained very serious and extensive orthopedic injuries following his fall.  Even if the sidewalk being wet wasn’t sudden and extraordinary, couldn’t it be defeated in that case by claiming the fall was an act of violence, and thus, by the Wal-Mart court’s opinion, an “extraordinary” event?  The same can be said for a 250 pound truss falling on an injured worker; or a fall from a 24’ ladder.

In all these cases, don’t we see a pattern here the courts, whether panel decisions or citeable opinions by the Courts of Appeal recognize that there is a legal importance to acts of violence and reject the definition that a violent blow is violence as contemplated by the Labor Code?

What do you, dear readers? Is every single injury, other than a cumulative trauma, an act of violence?

Your humble blogger wishes you a restful and reflective weekend.

Happy Friday, dear readers!

Well, we made it yet another week and the weekend is just around the corner.  So, I figured I’d take a “shot” at bringing you a relatively unorthodox blog post today, and it’s about guns!

Naturally, since June 24, 2022, when the United States Supreme Court issued its ruling overturning Roe v. Wade, almost all attention has been focused on that decision and understandably so.  Few issues in American political discourse trigger such strong emotions and such polarizing disagreements.  Further, the issue is rarely one that is hypothetical but has real world applications.  But for this blog post, I direct you to another decision: New York State Rifle & Pistol Association Inc. v. Bruen wherein the Supreme Court struck down New York’s law regarding concealed carry permits.  A law nearly identical to that of California.

Although the feelings regarding this decision are many and fractured, one area of near unanimous agreement is about the result – this ruling will increase the frequency of concealed carry permits issued to private citizens.  The California Attorney General issued OAG-2022-02 on June 24, 2022, directing that “[p]ermitting agencies may no longer require a demonstration of ‘good cause’ in order to obtain a concealed carry permit.”

As a result, are we going to see more firearms in the workplace?  May employers already have prohibition on bringing firearms to work, but some don’t or have no mechanism of enforcement given that the very nature of the issue is that it is concealed.

A reminder, dear readers, that Labor Code section 3208.3 has a lower standard for AOE/COE for psyche claims when the applicant sustains “direct exposure to a significant violent act” (from 51% to 35-40%).  In all likelihood, any violent act involving a gun is going to be considered a “significant violent act.”

Further, Labor Code section 4660.1 allows for increased permanent disability for a compensable consequence psyche claim where there is “exposure to a significant violent act within the meaning of Section 3208.3.”

In light of the high probability that a growing number of Californians will be carrying firearms on their person, employers may want to determine if the circumstances merit adoption of policy regarding firearms at work.  Being the cynic and devil’s advocate that he is, dear readers, your humble blogger can’t help but wonder if failure to proactively address the potential for firearms at work might lead to Serious and Willful Misconduct claims as well.

Now, all that being said, there are some advantages to having sane, trained, and law-abiding employees armed at work.  For example, in 2015 Syed Rizwan Farook and Tashfeen Malik allegedly carried out the San Bernardino massacre, murdering 14 and injuring some 22 co-workers in a horrific act of terrorism.  Not one of the victims was armed and all were rendered defenseless. Similar mass shootings in California have typically had a defenseless pool of victims.  But each employer will have to decide for itself, using its best knowledge of its employees and the dangers of the world, where the greater risk lies: in disgruntled employees and accidental shootings, or in intentional violence and no opportunity for mitigation. 

It is truly a sad thing that this is the calculus we are faced with, but face it with must.

So, on that cheerful note, your humble blogger wishes you a good weekend and hopes to see you back here early Monday morning!

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!

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!

Happy Monday, dear readers!

Your humble blogger brings you a rather unfortunate writ denied case this morning, that of Greenbrae Management/SCIF v. WCAB/Torres.

This is yet another in those long line of cases where the applicant prevailed on the theory that a “forceful blow” was sufficient to satisfy the “violent act” requirement of Labor Code section 4660.1.

In this case, applicant sustained an admitted injury in 2014 when he fell 20 feet from a tree he was trimming.  The question was, of course, whether applicant should be entitled to increased permanent disability based on the psychiatric injury resulting as a compensable consequence from the fall.

The WCJ ruled that a fall from a tree was not a “violent act” and thus, as there does not appear to be proof that the injury was “catastrophic”, the additional psyche-based PD was barred.  The WCAB reversed and the Court of Appeal has now denied review.

Your humble blogger previously articulated the argument that if a “forceful blow” was sufficient to satisfy the definition of violent act as contemplated by the labor code, then every forceful blow would be an “extraordinary” employment event, as previously defined by the Court of Appeal, so the 6 month employment rule would never work to bar a fall or being hit forcefully.

Here’s hoping that we get some contrary and binding guidance soon.  The WCAB’s reasoning that this doctrine is consistent with legislative intent to limit compensable consequence psyche injuries is weak medicine for defendants, who now see everything short of a cumulative trauma being claimed as either a “violent act” because of its forceful mechanism or “catastrophic” in its effect on the injured worker.

In the meantime, your humble blogger respectfully submits that we should continue litigating these cases.  A forceful blow is not a violent act – at last not according to any binding authority.  If the Court of Appeal had to issue a published opinion concluding that a wet sidewalk is not “extraordinary” on a rainy day, perhaps it will also have to issue a publish opinion clarifying that a violent act, within the meaning of the Labor Code, requires a third-party with intent to do harm (or something of a quasi-criminal nature).

Happy Monday, dear readers!

Your humble blogger, on a few occasions, has raised the question: what the heck is a catastrophic injury?  After all, we really don’t know what sort of injury would prompt a compensable consequence psyche injury to trigger liability for permanent disability (or possibly temporary disability), right?

Well, enter Senate Bill 897 – and this one is a real beauty!

SB897 passed the senate and the assembly recently, and would basically extend the wage continuation for injured public safety employees (firefighters, police officers, sheriff’s deputies, etc.) from one year to two years, if the employee sustained a “catastrophic injury at the hands of another.”  Now, whatever the merits of replacing two years of temporary disability with two years of wage continuation at the expense of tax payers, this would give us a working definition of the term “catastrophic.”

Labor Code section 4660.1(c)(2)(B) already provides with some parameters for a catastrophic injury: “including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.”

SB897 defines a “catastrophic injury at the hands of another” as “severe burns, severe bodily injuries resulting from the collapse of a building, or severe bodily injuries resulting from a shooting, stabbing, or battery.”  Well, 4660.1 already provides that being a victim of a violent act or direct exposure to a significant violent act makes the compensable consequence psyche injury eligible for PD and TD, so, in that sense, there’s already overlap with the “shooting, stabbing, or battery” and the same applies for “severe burns.”

But the last component, “severe bodily injuries resulting from the collapse of a building” gives us an idea of how serious the injury needs to be to qualify as catastrophic.  It’s not the effect on the injured worker’s life.  It’s not the effect on the injured worker’s earning capacity.  It’s something akin to being in a building collapse!

Your humble blogger has been doing this workers’ comp game for a while now, and I can tell you that simply being exposed to the workers’ compensation system – as an injured worker, employer, attorney, or judge – should qualify a person for having sustained an injurious exposure of a severe and catastrophic nature.  But we practitioners must brush it off, soldier on, and soothe our wounds with sugared pastries and grapes refined into their superior form.

But an injury that results in an injured worker having to go through the workers’ comp system, being kept in limbo while becoming an unwitting expert in the art of Kafka, does not qualify as “catastrophic.”

Burned to a crisp? Catastrophic.

Shot, stabbed, or beaten up? Catastrophic.

Involved in a building collapse or plane crash or train derailment? Probably catastrophic.

You can’t work anymore so you lost your house because you can’t make payments on it and it’s hard to get hired somewhere else because of a mixture of a shifting economy and the residuals of your injury? Probably not catastrophic.

What do you think, dear readers… is this too much of a stretch?  Or can we say that the legislature has given us an idea of what to expect in a “catastrophic” injury?

Happy Wednesday, dear readers!

As you will recall, SB-863 saw an amendment to the psyche claim business – pursuant to section 4660.1, there is to be no increase in permanent disability due to a compensable consequence psyche claim unless the injured worker was either the victim of violence, exposed to significant violence, or if the applicant sustained a catastrophic injury.

In classic theatrical style, the legislature left a lot of space for imagination, speculation, and (my favorite) litigation! What-oh-what did they mean by catastrophic injury?

Well, the panel cases to date have not been particularly helpful.  Everyone seems to be settling or, at least, not appealing the “catastrophic injury” question.

Recently, the WCAB reversed a WCJ’s rating based on a compensable psyche claim specifically because the issue of whether the underlying injury was violent or catastrophic was not addressed.

In Bevington v. County of Mariposa, the WCJ awarded applicant additional permanent disability based on a psyche rating, and defendant appealed arguing that a compensable consequence can only be awarded in accordance with LC 4660.1, as above.

In this particular case, the mechanism of injury was squatting, resulting in injury to the applicant’s knee.

The WCAB instructed the WCJ to develop the record and issue a ruling on whether or not the injury was catastrophic.  Unfortunately, the WCAB offered as much guidance on this point as the legislature did – how is one to determine whether or not an injury is catastrophic?  The mechanism? The effects on the body? The effects on the injured worker’s life and status and future?

For all of us sitting on the sidelines, this is a case to watch and a question to be answered.  For the parties in the trenches, this is likely a case to settle.  And the world will continue to speculate as to what catastrophic means.

If you’ve got any panel decisions that define the term – please send them to your humble blogger!