Wilson v WCAB

Determining whether a California worker suffered a catastrophic injury and can seek an increased impairment rating for psychiatric injuries depends on a number of factors including severity, the impact on activities of daily living and the extent of treatment needed to relieve the effects of the injury, the Workers’ Compensation Appeals Board listed in an en banc decision published Friday afternoon.

Ultimately, the nature of an injury — including whether it is catastrophic — is a factual issue for a judge to determine, the WCAB said in the unanimous decision, Wilson v. State of California Department of Forestry and Fire Protection.

Factors that may be considered in making such a determination include, but are not limited to:

• Intensity and seriousness of treatment provided to the employee to cure or relieve the effect of the injury.
• The ultimate outcome when the physical injury was permanent and stationary.
• The severity of the physical injury and its impact on the worker’s ability to perform activities of daily living.
• Whether the physical injury is closely analogous to loss of a limb, paralysis, severe burns or severe head injuries.
• Whether the physical injury is an incurable and progressive disease.

“Not all of these factors may be relevant in every case and the employee need not prove all of these factors in order to prove a ‘catastrophic injury,’” the decision says. “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 legislative intent behind section 4660.1(c).”

The legislative intent was to limit so-called add-ons for sleep, sexual and psychological conditions that some attorneys relied on to overcome low permanent disability ratings flowing from 2004 reforms, according to the WCAB’s analysis. The bill itself declares the intent of the Legislature to “eliminate questionable claims” of disability arising from work injuries.

And an analysis of the measure prepared for lawmakers during the 2012 session said, “Since benefit levels are being substantially increased by the bill, many believe that these add-ons, which generate substantial litigation expense, are no longer needed.”

The prohibition on sleep, sex and psychological add-ons does not apply to catastrophic injuries, but SB 863 didn’t define that term and it’s not defined elsewhere in the Labor Code. However, SB 863 included a non-exhaustive list of injuries that would be considered catastrophic, including loss of a limb, paralysis, severe burns and head injuries.

With no definition of catastrophic injury in the Labor Code, the WCAB scoured extrinsic sources to no avail. A review of legal dictionaries and other laws and regulations in California provided no clear, usable definition of a catastrophic injury, the board said.

However, the board said that based on its review, it concluded that the question of whether an injury is catastrophic is one that focuses on the nature of an injury.

“The nature of the injury will vary with the individual circumstances of each case,” the decision says. “Thus, determination of whether an injury is catastrophic under section 4660.1(c)(2)(B) will be a fact-driven inquiry.”

A psychiatric injury must result from a catastrophic injury for the employee to receive an increased impairment rating, the appeals board said. That suggests 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,” according to the decision.

“The injury must therefore be deemed catastrophic independent of the psychiatric injury,” the appeals board said.

The employee must prove a psychiatric injury was predominantly caused by actual events of employment to receive an impairment rating increase, the board said. And such a determination requires competent medical evidence.

An evaluating physician must render an opinion on whether the psychiatric injury was predominantly caused by actual events of employment. The doctor must also specify whether the psychiatric injury is directly caused by events of employment or is a compensable consequence of the physical injury.

The Department of Forestry accepted liability for injuries Kris Wilson sustained to his lungs, psyche, left eye, head, brain, heart and circulatory system in May 2014. Wilson inhaled fumes and smoke from a wildfire he was assigned to in Lompoc.

Wilson ultimately spent more than two weeks in the hospital, at times being intubated and put on a mechanical respirator.

A psychological qualified medical evaluator diagnosed Wilson with post-traumatic stress disorder. The QME said 100% of the PTSD was due to the direct effects of the injury.

A workers’ compensation judge did not include impairment for the psychiatric injury in finding Wilson sustained a 66% permanent disability. Wilson challenged the decision to exclude the psychiatric injury.

The WCAB, which granted reconsideration in March 2018 to study the factual and legal issues in the case, said Wilson’s injury was catastrophic and that he is entitled to an increased impairment rating.

Wilson was hospitalized and was put in a medically induced coma at one point. And he suffered both renal and respiratory failure. The physical injury alone resulted in a permanent disability rating of 66%, the board noted.

Medical reports indicate Wilson continues to suffer from the effects of the injury and that it impacts his ability to perform activities of daily life. He has persistent fatigue, shortness of breath and difficulty walking long distances. He was diagnosed with impaired cognition and memory, has difficulty sleeping and impaired vision as a result of the injury.

He tried to return to work, but the injury ended the career of the 28-year-old firefighter.

“The evidence therefore supports that the intensive treatment and the lasting impact of the injury on applicant have resulted in a catastrophic injury,” the WCAB concluded. “Applicant’s injury is not the type of questionable claim of disability that the Legislature sought to preclude from an increased impairment rating. Consequently, applicant may receive an increased impairment rating for his psychiatric injury under section 4660.1(c)(2)(B).”

The board returned the case to the trial level for further proceedings consistent with the opinion.