by Julius Young
The California WCAB has issued a series of en banc decisions that provide an answer as to how the workers’ comp system will define a catastrophic injury. SCIF will file a Petition for Writ of Review, and the issue may ultimately be decided by the California Court of Appeal.
For now, however, we have a roadmap as to how the WCAB should deal with the question of whether an injury is “catastrophic”.
How “catastrophic” would be defined has been a source of speculation since 2012, when workers’ comp reforms limited the criteria under which workers could claim “add ons” for post 1/1/13 psychiatric injuries causing psyche PD. Although the reforms did not limit psych PD for direct injuries and although the reforms did not preclude receipt of temporary disability payments or medical treatment for compensable consequence psych injuries, they did put limitations on compensable consequence psych PD claims.
Kris Wilson, represented by San Luis Obispo applicant attorney John Spatafore, was a firefighter who suffered profound physical consequences as a result of smoke inhalation during wildfire firefighting near Lompoc. There was extensive hospital treatment. In addition to pulmonary, neurological and visual effects he also suffered from PTSD and major depression.
Although injury to psyche was accepted, the claim of compensable consequence psyche permanent disability was rejected, and the trial judge concluded that Labor Code 4660.1(c) precluded a rating for any psyche PD.
The psyche component of permanent disability in this case was not directly caused by the injury, nor was it a result of a “violent act”.
The issue, then, was whether the injury to Wilson came under the “catastrophic” exception to the limitations on psyche PD add-ons.
The first WCAB en banc, Kris Wilson vs. State of California Cal Fire and SCIF (ADJ10116932 “Wilson I”), was issued on May 10, 2019, with applicant seeking reconsideration.
The WCAB en banc (“Wilson I”) notes that “catastrophic” is an adjective, and the focus under Labor Code 4660.1(c)(2)(B) is on the nature of the injury rather than the mechanism of injury.
Some commentators have argued that “catastrophic” would ultimately be defined by the mechanism of injury, i.e. applicable only to splashy, horrendous types of injuries. The Wilson en banc rejects that.
But dictionary definitions were not helpful in defining catastrophic for purposes of the statute. Nor were the definitions of catastrophic used in the California Education and Government Codes.
And while the legislative intent to limit add-ons in psych cases where there were questionable claims of disability was clear, it is noted that by having some exceptions, “the Legislature indicated that certain mechanisms and types of injury warrant permitting additional impairment under specific circumstances”.
The WCAB en banc in Wilson also rejects the argument that “catastrophic injury” is defined by a specific impact on earning capacity or level of permanent disability, noting that 4660.1(c)(1) does not specify a minimum level of disability.
So what is “catastrophic injury”? The WCAB formulates that the section focuses on the nature of the injury and is a “fact-driven inquiry”. The panel also notes that “the inquiry into whether an injury is catastrophic is limited to looking solely at the physical injury, without consideration for the psychiatric injury in evaluating the nature of the injury”.
Ultimately the issue as to whether an injury is “catastrophic” will be determined by the workers’ comp judge.
The WCAB specifies that a number of factors, including but not limited to the following, may be relevant in making that determination:
- The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve from the effects of the injury.
- The ultimate outcome when the employee’s physical injury is permanent and stationary.
- The severity of the physical injury and its impact on the employee’s ability to perform activities of daily living (ADLs).
- Whether the physical injury is closely analogous to one of the injuries specified in the statute: loss of a limb, paralysis, severe burn, or severe head injury.
- If the physical injury is an incurable and progressive disease.
The en banc notes that:
Not all of these factors may be relevant in every case and the employee need not prove all of these factors apply in order to prove a “catastrophic injury.” This list is also not exhaustive and the trier of fact may consider other relevant factors regarding the physical injury. In determining whether an injury is catastrophic, the trier of fact should be mindful of the legislative intent behind section 4660.1(c).
After “Wilson I” was issued, SCIF filed for reconsideration. Among the arguments SCIF raised was the contention that “catastrophic’ refers to the condition immediately after the injury occurs.. The WCAB in “Wilson II”, issued July 15, 2019, notes that the statutorily specified examples of “catastrophic” under section 4660.1(c)(2)(B) include situations such as amputations and being paralyzed that are not necessarily immediate after an injury. Therefore, “catastrophic” was not limited to injuries in a specific timeframe.
Moreover, the WCAB in “Wilson II” notes that “Defendant’s overly restrictive interpretation blurs the distinction between direct and compensable consequence injuries”. The “Wilson II” en banc notes that the WCAB rejects “defendant’s contention that the phrase “catastrophic injury” in section 4660.1(c)(2)(B) refers to the mechanism of injury and the condition immediately after the injury occurs.”
“Wilson II” also rejects SCIF’s argument that four of the five analytical factors listed by the WCAB as relevant to determination are “contrary to the legislative intent behind SB 863”. According to the WCAB:
Defendant does not explain why factors 1 through 3 and 5 will expand application of section 4660.1(c)(2)(B) and we discern no basis to anticipate this outcome. The Opinion expressly noted that “the trier of fact should be mindful of the legislative intent behind section 4660.1(c)” in determining whether an injury is catastrophic.
At long last we have an analytical framework for “catastrophic”. However, as they say, it is not over ‘til it’s over. With it likely that the Court of Appeal will grant a writ, we may not have a definitive answer on “catastrophic” for some time.
Assuming that “Wilson I” and “Wilson II” are not overturned altogether, the law will likely further develop over time. As the case law develops, legal guardrails will be put in place on a case by case basis as to what sorts of physical injuries fall inside or outside of this framework.
The decisions give hope to many who represent employees, since it allows for the “ultimate outcome” and impact of the physical injury on activities of daily living to be considered as factors in determining whether the injury is catastrophic.
Wilson’s injury clearly met this fact-based standard, As a result, the WCAB concluded that the injury was catastrophic and that Wilson was entitled to receive a psyche “add on” to his PD award.
The case is a win not only for Wilson, but also for firefighters in general and for many severely injured California workers.
To learn more specifics about this very important subject, tune in to Julius Young & Jake Jacobsmeyer’s webinar on this subject on 9/11/2019 from noon to 1pm. Register Here.
Wilson v. State of California, Cal Fire; SCIF, (2019) 84 Cal Comp Cases –
© Copyright 2019 by Julius Young
All rights reserved. Reprinted with permission.