In California, determining whether a worker sustained a ‘catastrophic injury’ is tricky. This is mainly because the phrase “catastrophic injury” is vague and ambiguous as used in section 4660.1(c)(2)(B) of the labor code. Practitioners have, since 2012, wrestled with the exact meaning of the phrase “catastrophic injury” as used in the Labor Code section 4660.1(c)(2)(B).

WCAB’s Clarification

However, the Workers’ Compensation Appeals Boardclarified in an en banc decisionthat whether a worker, like a firefighter, can seek a higher impairment rating for their psychiatric injuriesdepends on multiple factors. Some of these factors include the severity of the injury, its impact on daily activities as well as the extent of treatment required to minimize the effects of the injury.

The court also stated that the determination requires a “fact-driven” inquiry. It is worth mentioning that a fact-driven analysis to determine whether an injury is catastrophic is likely to encounter a range of circumstances that are beyond the statutorily-specified injuries that are covered under section 4660.1(c)(2)(B).

Wilson vs. the State of California

In Wilson vs. State of California Department of Forestry and Fire Protection 2019, the Court ruled on the specific case that Mr. Wilson had, in fact, suffered a catastrophic injury under the law.

Mr. Kris Wilson, a firefighter in the Department of Forestry, sustained an industrial injury in May 2014 while he was reporting to a wildfire in Lompoc. Mr. Wilson was assigned to the drainage area. As he wasn’t wearing a breathing apparatus, he inhaled smoke and fumes from the fire. Here are some other common workplace injuriesthat workers sustain.

Mr. Wilson decided to claim injuries to his psych, lungs, left eye, brain, head, heart, as well as circulatory system after being admitted to Sierra Vista Hospital in San Luis Obispo. In addition to neurological, pulmonary, and visual effects he suffered from major depression and PTSD as well.

In May 2014, the Department of Forestry conceded liability for injuries Mr. Kris Wilson sustained to his psyche, lungs, left eye, brain, head, heart, and circulatory system.

At the hospital, he was examined by PQMEs (Panel Qualified Medical Evaluators) in many specialties, which included a psychological PQME. This psychological PQME, in his report, indicated Mr. Wilson’s clear description of the trauma that surrounded his hospitalization after his injury. After his evaluation, he diagnosed Mr. Kris Wilson with a psychiatric disorder.

According to the report, Mr. Wilson believes that he has a grave physical injury that has the potential to shorten his life, kill him, or even send him back to a hospital. He also has a clear memory of waking up repeatedly while he was under intubation at the hospital.

At the initial trial, the main issue under dispute was that whether Mr. Kris Wilson was entitled to receive indemnity and damages for his psychiatric injury that he claimed were the result of his physical injury that was sustained while reporting to the Lompoc wildfire.

During his trial, Mr. Wilson claimed that this psychiatric injury met the criteria of one of the exceptions in section 4660.1(c)(2) of California Labor Code, especially a catastrophic injury that should increase his permanent disability rating (overall) under the law because of the compensable consequence injury he sustained to his psyche. According to the WCJ, under the statute Mr. Wilson failed to meet the exception clause for a catastrophic work injury. See why your workers’ comp claim may be denied.

Reconsideration

In March 2018, the WCAB granted reconsideration in order to study both the legal and factual issues in this case.

The WCAB disagreed with the WCJ’s verdict and held that Mr. Kris Wilson suffered a catastrophic injury under section 4660.1(c)(2)(B) of the labor code. He is, therefore, entitled to receive permanent disability for his psychiatric injury.

Section 4660.1(c)(2) of the California Labor Code permits a higher impairment rating if the psychiatric injury arose from a catastrophic injury. The Workers’ Compensation Appeals Board supported its conclusion with an analysis of section 4660.1(c). If a worker’s psychiatric injury is a consequence of their physical injury, the language in the statute indicates that the psychiatric injury has to arise from a catastrophic injury for the worker to get an increased rating for his or her psychiatric injury.

Legislative Intent

The board explained that in enacting section 4660.1(c), the intention of the Legislature was to restrict additional impairment for “questionable disability claims alleged to be triggered by a physical injury.” This was achieved by precluding increased impairment for so-called add-ons, like sexual dysfunction, sleep dysfunction, or a psychiatric disorder arising due to a compensable physical injury. These add-ons were used by some attorneys in order to overcome lower permanent disability ratings arising from 2004 reforms, as per the WCAB’s analysis.

And note that during the 2012 session a close analysis of the measure that was prepared for lawmakers stated that as benefit levels are being significantly increased by the reform bill, many are of the view that these add-ons, which produce considerable litigation expense, are not needed anymore. Learn more about the workers’ compensation claims process in California.

Exceptions

The board highlighted that the legislature provides 2 important exceptions to allow for additional impairment. These exceptions cover victims of:

  • direct exposure to a violent act and
  • a catastrophic injury

Then, the issue under consideration was whether the injury sustained by Mr. Wilson was covered by the “catastrophic” exception to the limitations on psyche personal disability add-ons. The board opined that this reflects that the inquiry into whether or not a worker’s injury is catastrophic is restricted to looking solely at their physical injury, disregarding the psychiatric injury in assessing the nature of the physical injury. Therefore, the injury must be considered catastrophic regardless of the psychiatric injury.

What does this mean?

Do not expect to find a simple or explicit definition of a “catastrophic injury” in the WCAB’s erudite and meticulous decision. However, what you’ll find is a comprehensive road-map or framework to make that determination. Ultimately, we can say that the issue of whether an injury is “catastrophic” would be determined by the relevant workers’ compensation judge handling the case.

To help make this decision some factors should be considered by the judge. The WCAB specifies that these factors include, but aren’t limited to the following:

  • Seriousness and intensity of treatment that is provided to the worker in order to relieve or cure the effects of the injury
  • Whether the worker’s physical injury is a progressive and incurable disease.
  • The final outcome when the injury was stationary and permanent
  • The severity or gravity of the physical injury as well as its impact on the employee’s ability to adequately carry out activities of daily living
  • Whether or not the employee’s injury is closely analogous to paralysis, loss of a limb, severe burns and severe head injuries

According to the en banc, not all of the above factors may be pertinent in each and every case. It is also worth mentioning that an employee does not have to prove that all of the factors are applicable in order to establish a “catastrophic injury.”

Why was Mr. KrisWilson’s Injury Deemed Catastrophic?

This is the key question that we have to address. There was a slew of different factors in Mr. Kris Wilson’s case, which made it catastrophic. We will discuss them. Firstly, his initial treatment at the hospital was life-threatening and serious. For example, his treatment entailed hospitalization as well as a medically-induced coma. See the benefits of filing your workers’ compensation claim as soon as possible.

Absent the psychiatric disability, according to WCJ, he rated out to 66{ba1297414c305310634ceaacbc930b3ec0c2222b554b4377f4b115a3fab9e862} permanent disability.  This means that his physical injury alone caused a permanent disability rating of 66 percent, according to the board. Medical reports also indicate that Mr. Wilson has persistent shortness of breath, fatigue, and difficulty walking long distances. This left him with significant medical complications that considerably impacted his ability to carry out ADLs (Activities of Daily Living.)

Lastly, his injury essentially terminated his career at an extremely young age of 28. Therefore, the evidence establishes that the intensive treatment, coupled with the lasting impact and consequences of the injury on Mr. Wilson, have resulted in a catastrophic injury.

Going Forward

It is worth mentioning that the broadness and flexibility of the factor analysis used by the board in the Wilson decision indicates that we can anticipate an increase in the number of claims of permanent disability under section 4660.1 (c)(2) of the labor code arising from compensable injuries within the catastrophic injuries exception and increased litigation.

It is also expected that this broad analytical framework designed by the board will become as helpful and common in determining whether or not the nature of a physical injury can be characterized as a “catastrophic injury” as the Rolda analysisis in determining causation of an alleged psychiatric injury.

Final Thoughts

The Workers’ Compensation Appeals Board has helped clarify a muddied and vague definition of what precisely constitutes catastrophic injury. This is a decision most practitioners claim could make it much simpler for workers in California to receive workers’ compensation benefits for various psychiatric disorders.