The Wilson Case: Flexible Catastrophe

JAMES COTTER, ESQ.

WALNUT CREEK, CALIFORNIA

As with most major changes to existing laws, when SB 863 was passed, practitioners had more questions than answers as to what it meant for their clients—and this was true for employers and injured workers alike.

One of the questions most debated was what to make of the "catastrophic" injury exception to the prohibition on permanent disability increases for psychiatric disorders arising out of a compensable physical injury. Employers long lobbied for clear limits on when impairment was to be increased, expressing a perception that many applicants were pleading sleep dysfunction, sexual dysfunction and psychiatric dysfunction as pro forma accompaniments to even the most garden variety of injuries. Even in cases where the medical evidence supporting such additions was thin or nonexistent, the regular pleading of these add-ons increased discovery costs, litigation costs and the time it took to resolve even basic cases. Often the addition of these allegations led to settlements that included some nuisance value in order to resolve the add-ons even where there was no substantial medical evidence supporting the pleadings. The Legislature itself stated, in enacting SB 863,