Tag Archives: 4660.1

About that SCOTUS Decision… no, the other one!

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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!

WCAB Rejects Psyche PD; Lays Burden on Applicant

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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!

WCJ and WCAB Find Ortho Injury NOT Catastrophic

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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!