24 Oct 2022

California: Psychiatric Injury and Catastrophic Injury

Here’s an interesting Board Panel Decision that interprets what constitutes a "catastrophic" injury under Wilson for the purposes of recovering increased PD for a psychiatric injury.

CA - NOTEWORTHY PANEL DECISIONS

Douglas Schaan, Applicant v. Jerry Thompson & Sons, Liberty Mutual, Defendants

W.C.A.B. No. ADJ9898989—WCAB Panel: Chair Zalewski, Deputy Commissioner Schmitz, Commissioner Razo

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed September 20, 2022

Publication Status: CAUTION: This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition: Reconsideration is granted, and the April 29, 2021 Findings and Award is affirmed.

Psychiatric Injury—Catastrophic Injuries—Increased Permanent Disability—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant did not suffer “catastrophic” injury pursuant to Labor Code § 4660.1(c)(2)(B) and Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393 (Appeals Board en banc opinion), and was, therefore, not entitled to increased permanent disability rating for psychiatric condition applicant incurred as compensable consequence of orthopedic injuries he sustained while employed as painter through 1/8/2015, when WCAB reasoned that under Wilson, whether injury is “catastrophic” depends on nature and severity of physical injury, without consideration of psychiatric sequelae, as evaluated based on factors including intensity and seriousness of medical treatment required by injury, outcome of employee’s physical injury when employee is permanent and stationary, impact of injury on activities of daily living (ADLs), and whether injury is analogous to one of injuries specified in Labor Code § 4660.1(c)(2)(B) (loss of limb, paralysis, severe burn, or severe head injury) or is incurable and progressive, and WCAB concluded that because applicant’s multiple shoulder surgeries (including replacement on both sides) was not sufficiently “serious and life-threatening” medical treatment, his ADLs were not sufficiently impacted, and his injury was not analogous to those outlined in statute nor was it progressive or incurable, applicant’s injury could not be deemed “catastrophic” for purposes of exception to bar on increased permanent disability for compensable consequence psychiatric injuries. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.02[3][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][b][i], [ii], 7.06[6], Ch. 10, § 10.06[3][a], [b][i]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 5, 6, 9.]

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant suffered 74 percent permanent disability as result of orthopedic injuries incurred while he was employed as painter during period through 1/8/2015, and agreed with WCJ’s determination that there was insufficient medical and vocational evidence to rebut scheduled permanent disability rating and support rating of 100 percent pursuant to Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, Contra Costa County v. W.C.A.B. (Dahl) (2015) 240 Cal. App. 4th 746, 193 Cal Rptr. 3d 7, 80 Cal. Comp. Cases 1119, and LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, when no reporting physician in this matter concluded that applicant was completely unable to return to work due to his industrial injury, and applicant’s vocational expert evidence was not sufficient to rebut scheduled permanent disability rating because expert improperly considered applicant’s compensable consequence psychiatric injury (which did not provide basis for increased permanent disability because injury was not “catastrophic”) in determining his amenability to vocational rehabilitation, partially premised his conclusions on applicant’s limited education and erroneously adopted work restrictions related to applicant’s GERD and use of opiates that were not supplied by medical experts. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3][a][ii], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][d], 7.12[2][a], [d][iii], 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]