California: WCAB Panel Defines Violent Act for Psychiatric Injury Under SB 863 Reforms

In Larsen v. Securitas Security Services, 2016 Cal. Wrk. Comp. P.D. LEXIS -- (Appeals Board noteworthy panel decision), the WCAB panel affirmed the WCJ’s findings that the applicant security guard sustained a compensable psychiatric injury that resulted in 56 percent permanent disability, after apportionment and after combination with permanent disability to the applicant’s shoulders, and that the applicant’s psychiatric permanent disability was separately compensable because it resulted from a “violent act” in accordance with Labor Code § 4660.1(c) [LC 4660.1].

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The WCAB panel found that the applicant’s accepted orthopedic and alleged psychiatric injury occurred as a result of being hit by a car while walking through a parking lot on 2/21/2013. The defendant asserted that being hit by a car was not a “violent act” under Labor Code § 4660.1 because it was not an act of a criminal or quasi-criminal nature perpetrated against the applicant.

The WCAB panel concluded that, where the Legislature did not include any language in Labor Code § 3208.3(b) [LC 3208.3] limiting the definition of a “violent act” to either criminal or quasi-criminal conduct perpetrated against an applicant, for purposes of Labor Code § 3208.3(b), a “violent act” is not limited solely to criminal or quasi-criminal activity, and may include other acts that are characterized by either a strong physical force, extreme or intense force, or are vehemently or passionately threatening. The applicant in this case, who was hit by a car from behind with enough force to cause her to fall, hit her head and lose consciousness, was a victim of a “violent act” within the definition of Labor Code § 3208.3(b) for purposes of receiving additional permanent disability for her psychological injury as an exception to Labor Code § 4660.1(c).

COMMENTARY BY ROBERT G. RASSP, ESQ.:

There are both legal and medical issues in this case that should be addressed. First of all, when you read the description of the mechanism of injury in the WCAB decision, it is clear that when the Applicant got struck by the car, she sustained a direct head injury in addition to her orthopedic injuries. Arguably, the debate in this case about whether or not a vehicle vs. pedestrian collision is a “violent act” under Labor Code § 4660.1(c) is moot because the post-concussion injury resulting in headaches, dizziness, and memory problems can be rated as a direct physical injury to the brain under Chapter 13 of the AMA Guides and is not a psyche case as a consequence of a physical injury.

The whole issue could have been avoided had Dr. Allen rated the case as a direct physical injury to the brain rather than as a psychiatric injury that arose out of a physical injury. The Applicant’s memory loss, headaches, depression, and other post-concussion symptoms are ratable under Chapter 13 — specifically, Tables 13-5 and 13-6 for the memory loss, Table 13-8 for the depression, Table 13-4 for any sleep disorder, and Table 13-2 for the headaches. All are based on the post-concussion syndrome. This would have avoided the entire issue under the Labor Code § 4660.1(c) exclusion of permanent disability for a psychiatric condition that is caused by a physical injury.

However, from a legal standpoint the WCAB decision makes sense since Labor Code § 4660.1(c)(2)(A) and Labor Code § 3208.3(b) do not define what a “violent act” is. The WCAB panel seems to be comfortable with its own conclusion that the term is not defined in either section and can, therefore, conclude that Applicant, who was “hit from behind with enough force to cause her to fall, hit her head, and lose consciousness” is a victim of a violent act under Labor Code § 3208.3(b) and the Applicant is entitled to additional permanent disability under Labor Code § 4660.1(c)(2)(A).

The WCAB panel went to great lengths to find other statutory references to the term “violent act” to refer to a broad definition of its use and to limit its application to acts of criminal or quasi-criminal violent acts as the Defendant had contended. However, Labor Code §§ 3208.3(b) and 4660.1(c)(2)(A) do not have any statutory requirement for a crime or quasi-criminal act to be part of a “violent act” in an industrial injury for permanent disability for a psychiatric injury that is a consequence of a physical injury. The WCAB panel logically found that getting hit by a car is a violent act under the unqualified and undefined use of the term “violent act” within those applicable Labor Code sections. The take-away of this case is that the doctor could have completely avoided this issue in the first place by properly evaluating the case as a direct head injury. Applicant’s attorney may have avoided this appeal if he or she had deposed Dr. Allen.

Read the Larsen noteworthy panel decision.

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