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CATASTROPHIC INJURIES AND THE ENSUING PSYCH LITIGATION…..KRIS WILSON V. STATE OF CA CAL FIRE (ADJ10116932)
By Nicholas Perry
The case of Kris Wilson, and its exploration of the definition of “catastrophic injury”, has opened the door for a flood of litigation with regard to the currently barred psychological add-on for permanent disability, absent specific exceptions. The below is a summation of the WCAB findings.
STAUTORY AUTHORITY: The straight reading of Labor Code § 4660.1(c)(1) provides:
…there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury. Nothing in this section shall limit the ability of an IW to obtain treatment for sleep dysfunction, sexual dysfunction or psychiatric disorder, if any, that are a consequence of an industrial injury.
Labor Code section 4660.1(c)(2), then provides exceptions for certain psychiatric compensable consequences when the applicant is the victim of a “violent act” or a “catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.” The term “catastrophic injury”, has not been otherwise defined in the statutory language.
FACTS OF THE CASE: Mr. Wilson was a firefighter for the Department of Forestry. Pursuant to his Application for Adjudication of Claim, he alleged injury to his lungs, brain, heart, left eye, head, circulatory system and psych, as a result of a May 13, 2014 injury. On that day, applicant was responding to a fire in Lompoc, California. During his work on that fire the applicant was not wearing a breathing apparatus and inhaled fumes and smoke for several hours. That same day applicant began experiencing nausea, vomiting, eye discharge, and other symptoms, and was eventually taken to Kaiser, by his father, for treatment the following day. From Kaiser applicant was transferred to another hospital and admitted to the Intensive Care Unit and intubated for respiratory failure and Acute Respiratory Distress Syndrome. He remained in the hospital for two additional weeks and was eventually extubated and discharged on June 1, 2014. He attempted to return to work about one year later, but was unable to perform, and was again taken off work in July 2015.
MEDICAL-LEGAL FINDINGS: Applicant underwent multiple Panel Qualified Medical Evaluations, which provided the following: Psych QME, Dr. Joseph Walsh, found industrial PTSD, and gave 36 % WPI; Ophthalmological QME, Dr. Marta Recasens, found industrial cataract in his left eye, refracted error and vitreous liquefication in both eyes and gave 17% WPI, with 3% pain add-on; Neurology QME, Dr. Mark Pulera, diagnosed applicant with impaired cognition and memory, mild headache, one isolated episode of syncope and possible sleep disorder and gave 5% WPI and 3% pain add-on for headaches; Cardiopulmonary QME, Dr. Grodan, assigned 5% to the pulmonary hypertension and with 50% of the impairment being industrial and 50% apportioned to non-industrial allergies; and the Internal QME, Dr. Franklin, diagnosed applicant with ARDS, asthma and chronic insomnia and assigned 10% WPI for ARDS, which was 100% industrial, and 10% for asthma, which was only 80% industrial.
With all of these medical-legals completed and unable to reach settlement, the matter proceeded to Trial. After Trial concluded, the WCJ issued a PD Award at 66%, which did not include impairment for the industrial psych injury. In ruling the PD value would not include Psych Impairment, the judge noted that this was not a catastrophic injury, specifically stating that “it is not the consequence of an injury that are catastrophic but the injury itself.” Applicant then petitioned for reconsideration.
WCAB RATIONALE: In order to receive an increased impairment rating for his psychiatric injury, applicant bears the burden of proving his psychiatric injury was directly caused by events of employment; or, alternatively, if the psychiatric injury is a compensable consequence of the physical injury, applicant must show that the psychiatric injury resulted from either: I) being a victim of a violent act or direct exposure to a significant violent act, or 2) catastrophic injury.
Here the WCAB found that applicant’s psych injury was a compensable consequence, and not a direct cause. Further, the injury did not meet the standard of a violent act, that being “either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.”
The WCAB then turned to the exception for catastrophic injury. Since Labor Code section 4660.l(c)(2)(B) does not define catastrophic injury, the WCAB addressed statutory construction in order to determine the meaning of "catastrophic injury". In its analysis, the WCAB was unable to find a usable definition to interpret catastrophic injury in the context of a psychiatric compensable consequence injury, and noted it is fact driven and will vary from case to case. "This indicates that the inquiry into whether an injury is catastrophic is limited to looking solely at the physical injury, without consideration for the psychiatric injury."
Notwithstanding the above, the WCAB noted that the employee must still prove that the psychiatric injury was predominantly caused by actual events of employment based on competent medical evidence, and whether the injury is catastrophic remains a factual determination for the WCJ. In order to provide further clarification on this fact driven analysis, the WCAB enumerated five factors that the trier of fact may consider in determining whether an injury is catastrophic. "These factors include, but are not limited to, the following, as relevant:
1. The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve from the effects of the injury.
2. The ultimate outcome when the employee's physical injury is permanent and stationary.
3. The severity of the physical injury and its impact on the employee's ability to perform activities of daily living (ADLs).
4. 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.
5. If the physical injury is an incurable and progressive disease."
The WCAB found that the applicant met his burden of proof that the psychiatric injury was the predominant cause, so they then needed to determine if the injury was catastrophic, thereby meeting the exception for the psychiatric pain add-on, as a compensable consequence.
Here, applicant was admitted to Kaiser, immediately transferred and admitted to another hospital, placed in a medically induced coma, intubated, and not released for multiple weeks. His impairment, excluding the psych component, also combined to a 66% rating. Further, despite his efforts to reach a full recovery and return to work, the effects of his injury still caused great disturbance of his activities of daily living and he could not return to work as a firefighter.
FINDING AND WHAT’S NEXT: Shortly after this ruling, on July 15, 2019, the Appeals Board issued an En Banc decision denying defendant's Petition for Reconsideration of its Opinion and Decision After Reconsideration. We can expect that defendant, SCIF, will next file a Petition for Writ of Review. However, as it stands, we can anticipate a significant increase in litigation of psych claims in order to get the, what was formerly barred, psych PD increase.
Moving forward, we will now need to be more mindful of this new decision and the five Wilson factors, in evaluating potential increase in settlement exposure with more cases meeting the exception for the current bar of PD increase for a compensable consequence psych claim.
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