Psychiatric Injuries Post-SB 863: The PQME Process Lives On

In Hernandez v. Fremont Bank, 2015 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB affirmed the WCJ’s finding that the applicant bank teller, who alleged that she suffered psychiatric injury as a compensable consequence of an orthopedic injury, was entitled to a panel qualified medical evaluator (PQME) in the specialty of psychiatry.

The WCAB rejected the defendant’s assertion that a psychiatric medical-legal evaluation was inappropriate under the circumstances based on the provision in  Labor Code § 4660.1(c)(1) [LC 4660.1] that precludes compensation for a permanent psychiatric impairment that results as a consequence of a physical injury. Noting the manner in which the defendant “conveniently” left out the second sentence of § 4660.1(c)(1), which allows injured employees to obtain treatment for sleep dysfunction, sexual dysfunction or a psychiatric disorder if any of those conditions are a consequence of an industrial injury (as opposed to arising out of a compensable physical injury), the WCAB reasoned that the applicant still retained the right to obtain medical treatment for her psychiatric injury under Labor Code § 4660.1(c)(1).

Because the appropriate procedure for resolving a dispute over an injury under circumstances where compensation for a permanent psychiatric impairment was unavailable was to use a panel qualified medical evaluator, the WCAB found that the assignment of an additional panel in psychiatry was appropriate.

The WCAB accordingly concluded that the defendant would not suffer substantial prejudice or irreparable harm by the denial of its petition for removal and that reconsideration would be an adequate remedy in the event that the matter proceeded to a final decision that was adverse to the defendant.

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Commentary:

This case addresses one of the major aspects of SB 863. Labor Code § 4660.1(c)(1), applicable to all injuries after 1/1/13, provides for the elimination of impairment ratings for sleep dysfunction, sexual dysfunction, or a psychiatric disorder arising out of a compensable physical injury. This section, however, has a second sentence which provides that nothing in this section shall limit the ability of an injured worker to obtain medical treatment for any of these conditions if they are the result of the industrial injury.  In most instances, the only way for an injured worker to establish that the condition is industrially related and requires treatment is through access to the Panel QME process. This case underscores that even though PD may not be available for these conditions to many injured workers with these dates of injury, they still have recourse to the PQME process.

Read the Hernandez noteworthy panel decision.

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