California: Exceptional Psyche Cases: Making the Right Decision at the Crossroads

Under Labor Code Section 4660.1(c)(1), psychiatric impairment that is the consequence of a physical injury is no longer generally compensable. Yet, no one disputes that injuries do produce significant psychiatric impairment. In any given case, if this is not added into the picture, it may result in an inequitable award. In order to prevent this from occurring, the legislature did allow for several important exceptions. As of yet, the applicant bar has not been terribly aggressive in pursuing them. Two recent opinions by the WCAB after Reconsideration provide a nice road map for pursuing such matters. Both cases illustrate the key importance of deciding which of the various exceptions to pursue. That decision can make the difference as to success or failure.

In the case of Torres v. Greenbrae Management, 2017 Cal. Wrk. Comp. P.D. LEXIS 230, applicant was injured while trimming a tree when a large branch broke and he fell some 20 feet to the ground striking his head. Thereafter, the applicant no longer wanted to socialize, suffered memory problems, had little stamina, became confused easily, and showed some mild anxiety and moderate depression. The AME in psychiatry provided a rating for the psychiatric issues and, to his credit, recommended a further neurologic evaluation (which logically would not be limited by the restrictions of Labor Code Section 4660.1) because it is outside the field of psychiatry. The neurologist AME, in turn, provided his own separate rating, including a neurocognitive impairment.

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The main question on Reconsideration was whether the psychiatric permanent disability was compensable. Initially applicant’s counsel contended that the psychiatric impairment would be compensable as the results were catastrophic and/or were directly caused by the accident itself. Labor Code Section 4660.1(c)(2)(B) allows for compensability when the injury is deemed “catastrophic.” And, of course, if the impairment is not a “consequence” but is a “direct” result, then Labor Code Section 4660.1(c)(1) would not appear to be a barrier in any event. Remember this code section only limits psychiatric injuries that are a consequence of physical injury. 

Looking at these arguments individually, the Panel noted that neither the psychiatrist nor medical records clearly delineate whether the psychiatric injury was caused directly by the fall, or was the result of a compensable physical injury, or a combination of the two. The Panel engages in hypotheticals such as whether applicant’s nightmares were really caused by the fall or the results therefrom, showing how difficult it would be to delineate this distinction. (I would note that this, in turn, would bring up arguments as to who has the burden of proof and what use the term “inextricably intertwined” may have in such a context.)

Concerning whether the injury was catastrophic, the Panel, perhaps wisely, refuses to even analyze the issue. The “catastrophic” exception of Labor Code Section 4660.1(c)(2)(C) makes the psychiatric component compensable if it was “catastrophic”. The answer becomes very complicated. Did the legislature intend that the injury by itself, at the moment of injury, must be seen as catastrophic? Or, did the legislature mean that it is adequate if the effects of injury turn out to be catastrophic, even after the fact? Further, what does catastrophic mean? Is it a monetary question, a functional question, or a purely psychological one? Although my personal opinion is that “catastrophic” does indeed include the results of injury, it does not surprise me that the issue has not been pursued more aggressively. It is a hornet’s nest waiting to happen.

Fortunately, for the applicant here, his attorney submitted an unusual request for supplemental briefing (which was accepted by the Panel) wherein they contended that the mechanism of injury actually constituted a violent act pursuant to Labor Code Section 4661.1(c)(2)(A). This is yet another exception that allows for compensability on psychiatric injuries when the event is “violent”. There is no doubt that falling to the ground when hit by a branch constitutes a violent act. With that, the applicant was able to collect his life pension, which otherwise would not have been allowed if the psychiatric component were removed.

Can you imagine what would have occurred on this case had the violent act issue not been pursued? The Panel would likely have been reluctant to delve into the question of whether the injury was catastrophic.  Further the result of any such hypothetical discussion is not clear cut. And, trying to determine the question of whether a psychiatric injury is direct versus consequential to a physical injury would be liable to result in a speculative analysis. It may be that only because applicant’s attorney decided to pursue a different avenue that the case became compensable.

We have a similar situation in the case of Baldwin v. Delphi Energy & Engine Management, 2017 Cal. Wrk. Comp. P.D. LEXIS 212. In that case, although a vocational expert was called upon to testify that applicant could not compete in the open labor market, the Judge chose to rely instead on Labor Code Section 4662(a)(4) to make applicant 100% disabled. This code section allows for total disability when injury to the brain results in “incurable mental incapacity or insanity”. The Judge negated the argument that an actual organic brain injury is required by the statute. Instead, the judge reasoned that depression should be considered as permanent mental incapacity thus satisfying the statute.

Although not taking sides on the argument, I imagine the reader can see the problem with this argument as it somehow feels “uncomfortable”. Somehow our image of total mental incapacity does not typically conjure up someone severely depressed regardless of the linguistic accuracy of the term.

On Reconsideration, the Panel struggles with this, trying to search for the meaning of mental capacity. They look in Black’s Law Dictionary. They concede that it is theoretically possible that a purely psychiatric injury may qualify as a brain injury. But the Honorable Commissioners chose to focus on cognition for which there were no defects found in the applicant according to the reporting. Based on this, they deny usage of the 4662(a)(4) exception.

I do not know if the Commissioners demanding severe cognitive impairment is necessarily required by Labor Code Section 4662(a)(4). I do not know if a psychiatric injury is necessarily excluded from the statute. I do know that the Commissioners were clearly uncomfortable with utilizing this Labor Code Section in a case of someone severely depressed.

I also note from the record that there were several other arguments available. For instance, applicant suffered from chronic pain. Furthermore, a vocational specialist had found that applicant could no longer compete in the open labor market. (This was an “old schedule case”.) Although it is easy in hindsight to second-guess, it does seem clear that pursuing the inability to compete in the open labor market and/or the arguably total impairment caused by pain would have been the better option for applicant’s attorney to focus on. It is not necessarily clear from the record whether the focus on 4662(a)(4) was applicant’s attorney’s decision or whether the Judge made the issue front and center.

The benefit of Labor Code Section 4662 is that it seems to allow for an un-apportioned award. However, in a case where someone is suffering from pain, issues of nonindustrial apportionment are often inextricably intertwined and it often becomes speculative to separate out non industrial components.

In summary, there are many paths to choose from. When at the crossroads, the decision as to which path to follow may be the most crucial of all.

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