Kris Wilson vs. STATE OF CA CAL FIRE; legally uninsured, adjusted by STATE COMPENSATION INSURANCE FUND
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1 WORKERS’ COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 4 Case No. ADJ10116932 (San Luis Obispo District Office) KRIS WILSON, 5 Applicant, 6 vs. 7 8 STATE OF CA CAL FIRE; legally uninsured, adjusted by STATE COMPENSATION INSURANCE FUND, OPINION AND DECISION AFTER RECONSIDERATION (En Banc) 9 Defendants. 10 11 12 Reconsideration was granted on March 12, 2018 in order to further study the factual and legal issues in this case. 13 To secure uniformity of decision in the future, the Chair of the Appeals Board, upon a unanimous 14 vote of its members,1 assigned this case to the Appeals Board as a whole for an en banc decision.2 (Lab. 15 Code, § 115.)3 16 On December 28, 2017, a workers’ compensation administrative law judge (WCJ) issued a 17 Findings and Award (F&A),4 which found, in relevant part, that applicant is entitled to a permanent 18 disability award of 66% as a result of his May 13, 2014 injury. The permanent disability award excluded 19 an impairment rating for applicant’s psychiatric injury pursuant to section 4660.1(c). (Lab. Code, 20 § 4660.1(c).) 21 Applicant sought reconsideration of the F&A. Applicant contends that the evidence supports 22 inclusion of an impairment rating for his psychiatric injury because his psychiatric injury was directly 23 24 1 Commissioner Katherine Dodd is unavailable and did not participate in this en banc decision. 2 25 26 27 30 En banc decisions of the Appeals Board are binding precedent on all Appeals Board panels and WCJs. (Cal. Code Regs., tit. 8, § 10341; City of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 316, fn. 5 [70 Cal.Comp.Cases 109]; Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1424, fn. 6 [67 Cal.Comp.Cases 236].) This en banc decision is also adopted as a precedent decision pursuant to Government Code section 11425.60(b). 3 All further statutory references are to the Labor Code unless otherwise stated. 4 The F&A is dated December 27, 2017, but was not served until December 28, 2017. 1 caused by events of employment and, therefore, section 4660.1(c) does not apply. Alternatively, 2 applicant contends that he is entitled to an increased impairment rating for his psychiatric injury because 3 the injury resulted from being the victim of a violent act or is catastrophic. 4 § 4660.1(c)(2)(A)-(B).) (Lab. Code, 5 We received an answer from defendant.5 The WCJ issued a Report and Recommendation on 6 Petition for Reconsideration (Report) recommending that we deny reconsideration. Applicant submitted 7 a reply to defendant’s answer, which we will treat as a supplemental pleading. (See Cal. Code Regs., tit. 8 8, § 10848.) 9 supplemental pleading as required by WCAB Rule 10848. We will accept and consider this pleading, 10 but advise applicant that failure to seek approval to submit a supplemental pleading may result in its 11 rejection. Applicant did not seek approval from the Appeals Board prior to submitting this 12 Based upon our review of the record, applicant’s Petition for Reconsideration, defendant’s 13 answer, applicant’s supplemental pleading, the contents of the WCJ’s Report and the relevant statutes 14 and case law, we hold as follows: Determination of whether an injury is catastrophic under section 4660.1(c)(2)(B) focuses on the nature of the injury and is a fact-driven inquiry. 15 16 17 18 We will therefore rescind the F&A and substitute a new findings and award to include a finding of fact 19 that applicant sustained a catastrophic injury and may receive an increased impairment rating for his 20 psychiatric injury under section 4660.1(c)(2)(B). The issues of permanent disability and apportionment 21 will be deferred. The matter will be returned to the trial level for further proceedings consistent with this 22 opinion. 23 FACTUAL BACKGROUND 24 Applicant claims injury to his lungs, psyche, left eye, head, brain, heart and circulatory system on 25 May 13, 2014 while employed as a firefighter by the Department of Forestry (also known as State of 26 27 30 5 Defendant initially filed an answer on January 30, 2018 and then filed an amended answer on January 31, 2018. WILSON, Kris 2 1 California, Cal Fire). Defendant has accepted liability for injury to the lungs, psyche, left eye, head and 2 brain, but disputes compensability for the heart and circulatory system. Defendant disputes liability for 3 permanent impairment for applicant’s psychiatric injury. 4 The parties do not appear to dispute the facts surrounding what occurred on the date of injury. 5 Applicant began his shift and reported to a wildfire in Lompoc. He was assigned to the drainage area 6 where he inhaled fumes and smoke from the fire as he was not wearing a breathing apparatus. Applicant 7 performed this work for several hours until approximately 8:00 a.m. the next day. 8 On May 15, 2014, applicant sought treatment as summarized in the medical reporting: He went to Sierra Vista Hospital in San Luis Obispo and went through the emergency department, where he presented with complaints of rash, shortness of breath, nausea, vomiting, low back pain, neck pain, headache and dizziness (when standing), crusty bilateral eye discharge, difficulty speaking, and sore threat with swelling to the left side of his neck. … His father drove him to Kaiser the following morning with symptoms of difficulty breathing, blisters on the back of his ears, and ulcers in his throat and mouth. He was put on oxygen and referred to [the Antelope Valley] Hospital. Mr. Wilson reported that he has no memory of leaving Kaiser, but stated that his father told him that when they attempted to remove him from the oxygen, he would go into convulsions. He was transported to the Antelope Valley Hospital Emergency Department by ambulance with labored breathing and fever. He was admitted to ICU and stayed in the hospital for approximately 2 weeks, during which time he was intubated and put on a mechanical respirator. 9 10 11 12 13 14 15 16 17 18 (Applicant’s Exhibit No. 10, Dr. Walsh’s Report, October 24, 2016, pp. 1516.) 19 20 21 A summary of the hospital’s progress reports during applicant’s extended stay in ICU states, in relevant 22 part: “A couple of days after the patient was admitted he developed significant respiratory symptoms and 23 was eventually intubated.” (Applicant’s Exhibit No. 12, Report of Dr. Recasens, November 22, 2016, 24 p. 8.) He was placed “on 100% oxygen via non-rebreather mask saturation 85%.” (Applicant’s Exhibit 25 No. 5, Dr. Ho’s Report, July 14, 2016, p. 14.) 26 hospital stay to evaluate generalized “vigorous tremors” he was having “for a few seconds at a time” that 27 / / / 30 WILSON, Kris A consultation was conducted during applicant’s 3 1 “stopped for 30 seconds and returned later.” (Id. at p. 15.) A May 28, 2014 consultation report during 2 applicant’s hospitalization also noted as follows: The patient initially presented to the emergency room on May 17 after acute onset of nausea, chills and fevers with night sweats. He developed ulcerations of the tongue, mouth and lips. He vomited with high fevers and developed a rash all over his entire body. He had renal failure, transaminitis with interstitial infiltrates and respiratory failure requiring intubation….The patient remains intubated. There is some concern about underlying acute respiratory distress syndrome complicating weaning from the ventilator. 3 4 5 6 7 8 (Applicant’s Exhibit No. 1, Report of Dr. Mark Pulera, June 23, 2016, p. 20.) 9 10 Applicant was ultimately extubated on May 29, 2014, approximately two weeks after his admission to 11 the hospital. (Applicant’s Exhibit No. 5, Dr. Ho’s Report, July 14, 2016, p. 16.) He remained in the 12 hospital until his discharge on June 1, 2014 with his condition and treatment summarized upon discharge 13 as follows: 14 15 16 17 The patient came in with shortness of breath and rash in oral mucosa, as well as arms and legs. The patient was fighting a fire before admission for two to three days and noticed increased erythema of the conjunctivi and painful ulcers on the tongue and mouth with blistering. He had fevers to 103. He was intubated for respiratory failure and ARDS [acute respiratory distress syndrome]. X-rays showed interstitial infiltrates with abnormal liver function tests and hypoxia. 18 19 (Applicant’s Exhibit No. 1, Report of Dr. Mark Pulera, June 23, 2016, p. 23.) 20 21 Applicant returned to work as a firefighter in April 2015. (Applicant’s Exhibit No. 10, 22 Dr. Walsh’s Report, October 24, 2016, p. 16.) However, he “was unable to keep pace with his coworkers 23 and became concerned about his ability to work as a firefighter. He was again taken off work by 24 Dr. Vikas and he last worked in mid July 2015.” (Id.) 25 Mark Pulera, M.D. evaluated applicant as the neurological panel qualified medical evaluator 26 (QME). Applicant reported to Dr. Pulera that he still has shortness of breath, is constantly fatigued and 27 has persistent chest pain. (Applicant’s Exhibit No. 1, Report of Dr. Mark Pulera, June 23, 2016, 30 WILSON, Kris 4 1 pp. 5 and 8.) His fatigue and weakness impairs his ability to walk long distances or run. (Id. at p. 10.) 2 The injury reportedly impairs his ability to lift. (Id.) Applicant “also complained of impaired memory 3 and cognition since the injury.” (Id. at p. 7.) He further reported persistent difficulty with sleep since the 4 injury. (Id. at pp. 7-8.) 5 Applicant reported to Dr. Pulera “a new episode of loss of consciousness” a few months before 6 his evaluation. (Id. at p. 6.) “He was watching a graphic television show where they were cutting open a 7 man. After viewing this graphic scene, Mr. Wilson blacked out. He noted prior to blacking out, he felt 8 bilateral tingling in his arms.” (Id.) Applicant’s wife “noted that his whole body was shaking for 9 perhaps 10 seconds” when he blacked out. (Id. at p. 7.) This was the only episode of this nature reported 10 by applicant. (Id.) 11 Dr. Pulera diagnosed him with: mild impaired cognition and memory, mild headache, one 12 isolated episode of likely syncope and possible sleep disorder. (Id. at p. 40.) These conditions were 13 considered industrially caused due to the work exposure on May 13, 2014. (Id. at pp. 40-41.) Applicant 14 was deemed neurologically permanent and stationary as of December 14, 2014. (Id. at p. 44.) Dr. Pulera 15 assigned applicant with a whole person impairment (WPI) rating of 5% for mental status impairment and 16 3% pain add-on for his headaches. (Id. at p. 42.) No apportionment to non-industrial factors was given. 17 (Id. at p. 43.) Dr. Pulera also opined that applicant “cannot return to firefighter duties.” (Id. at p. 44.) 18 Paul Grodan, M.D. performed an evaluation of applicant as the cardiopulmonary QME. With 19 respect to applicant’s hospitalization in May 2014, Dr. Grodan noted that the “records [he] reviewed 20 reflect that indeed [applicant] had significant issues requiring even intubation due to respiratory failure.” 21 (Applicant’s Exhibit No. 3, Dr. Grodan’s Report, June 24, 2016, p. 20.) He diagnosed applicant with an 22 episode of “hypersensitivity pneumonitis with respiratory failure generalized papular eruption 23 resolved/pulmonary hypertension;” allergic diathesis, severe; toxic metabolic encephalopathy with 24 cognitive impairment according to Dr. Pulera; and insomnia disorder. (Id.) The pulmonary hypertension 25 was assigned a 5% WPI rating. (Id. at p. 22.) Dr. Grodan opined that he “agree[s] with the decision to 26 retire Mr. Wilson.” (Id. at p. 23.) He subsequently issued a supplemental report wherein he opined that 27 / / / 30 WILSON, Kris 5 1 50% of applicant’s pulmonary problem was due to non-industrial allergies and 50% was due to exposure 2 in his employment. (Applicant’s Exhibit No. 4, Dr. Grodan’s Report, September 18, 2016, p. 5.) 3 Franklin Ho, M.D. also evaluated applicant as the internal medicine QME. His initial diagnoses 4 included, in relevant part: ARDS, possible asthma and chronic insomnia. (Applicant’s Exhibit No. 5, 5 Dr. Ho’s Report, July 14, 2016, p. 24.) These diagnoses were considered industrially caused. (Id. at 6 p. 32.) Dr. Ho described ARDS as “a life-threatening condition involving the lungs that impairs gas 7 exchange.” (Id. at p. 25.) He further opined that “[s]urvivors [of ARDS] commonly have chronic 8 decrement of lung function and persistent symptoms even five years after the original insult, showing the 9 severe nature of the condition.” (Id. at p. 28.) Dr. Ho also “agree[d] with his providers that he can no 10 longer fight fires, given his sensitivity to smoke.” (Id. at p. 33.) 11 Dr. Ho issued a supplemental report wherein he provided pulmonary diagnoses as follows: 12 ARDS-induced neuromuscular respiratory weakness, probable asthma and mild pulmonary hypertension. 13 (Applicant’s Exhibit No. 9, Dr. Ho’s Report, April 12, 2017, p. 9.) Dr. Ho opined that applicant has 14 asthma within reasonable medical probability. (Id. at p. 11.) Applicant’s conditions were assigned WPI 15 ratings as follows: 10% for the ARDS-induced neuromuscular respiratory weakness (100% industrial) 16 and 10% for his asthma (80% due to his industrial ARDS and 20% due to non-industrial causes). (Id. at 17 pp. 13-14.) Joseph Walsh, Ph.D. evaluated applicant as the psychological QME. Dr. Walsh’s October 24, 18 19 2016 report contains the following history: [Applicant] described feeling emotionally traumatized following his symptoms resulting from the fire and by his near death experience in the hospital following his injury. As reported above, he believes that he has a serious physical injury that may kill him, shorten his life or send him back to the hospital. He has a vivid memory of waking up while he was intubated at the hospital and this is re-experienced in a recurring nightmare approximately 2 to 3 times each week. 20 21 22 23 24 (Applicant’s Exhibit No. 10, Dr. Walsh’s Report, October 24, 2016, p. 14.) 25 26 / / / 27 / / / 30 WILSON, Kris 6 1 2 3 4 5 6 Applicant also reported to Dr. Walsh the following: He continues to experience sleep difficulty that was not present prior to his injury. He has difficulty initiating and maintaining sleep and is tired and sleepy during the daytime. His memory and concentration is reported is [sic] not as good and he finds that he is easily irritated. As a result, his wife moved to a different room to sleep because of his restless sleep and his occasional snoring. (Id. at p. 16.) 7 8 In his discussion section, Dr. Walsh opined: 12 Mr. Wilson has developed characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involved serious injury and threatened death. He is experiencing significant symptoms of anxiety and depression subsequent to work related injuries sustained while fighting a fire with resultant physical injuries, limitations and impairment. 13 (Id. at p. 24.) 9 10 11 14 Dr. Walsh diagnosed applicant with post-traumatic stress disorder (PTSD) and a severe major depressive 15 disorder. (Id. at p. 24.) These conditions were considered predominantly caused by actual events of 16 employment. (Id. at p. 34.) 17 In a subsequent re-evaluation report, Dr. Walsh opined that 100% of applicant’s PTSD was “due 18 to the direct effects of the May 13, 2014 injury, an actual event of employment.” (Applicant’s Exhibit 19 No. 11, Dr. Walsh’s Report, April 14, 2017, p. 18.) The depression was “deemed to be 75% related to 20 his untreated PTSD and 25% related to not being able to continue to work as a firefighter/EMT.” (Id.) 21 Applicant was deemed “temporarily totally disabled from May 13, 2014 until the present on a 22 psychiatric/psychological basis.” (Id. at p. 19.) Dr. Walsh further opined that: 26 …while the primary injury, a Post-traumatic Stress Disorder, arose out of the effects of and treatment for a compensable physical injury, it is my opinion that it is not precluded from compensability for disability by Labor Code Section 4660.1 pursuant to SB863 for dates of injury effective January 1, 2013; because in my opinion, the industrial psychological injury represents a catastrophic injury. 27 (Id. at p. 14, emphasis in original.) 23 24 25 30 WILSON, Kris 7 1 Applicant was assigned a GAF score of 47 with a 36% WPI rating. (Id. at p. 20.) Dr. Walsh apportioned 2 90% of his permanent impairment to actual events of employment and 10% to his reaction to not being 3 able to continue to work as a firefighter/EMT. (Id.) The QME deferred to the trier of fact if this reaction 4 would also represent an actual event of employment, “in which case there would be 100% apportionment 5 of the cause of the permanent impairment/disability to actual events of his employment.” (Id.) 6 Lastly, Marta Recasens, M.D. conducted an evaluation of applicant as the ophthalmological 7 QME. She diagnosed applicant with a cataract in his left eye, refractive error (left eye worse than right 8 eye) and vitreous liquefaction in both eyes. (Applicant’s Exhibit No. 12, Report of Dr. Recasens, 9 November 22, 2016, p. 24.) The cataract and refractive error were considered industrially caused. (Id. at 10 p. 25.) Applicant reported that he cannot read anymore and complained of blurred vision and glare in 11 both eyes, as well as reduced depth perception. (Id. at p. 23.) In a supplemental report, Dr. Recasens 12 considered the eye conditions to be permanent and stationary and provided 17% WPI for impairment to 13 the visual system and 3% WPI add-on for pain. (Applicant’s Exhibit No. 13, Dr. Recasens’ Report, 14 May 25, 2017, p. 3.) No apportionment was given. (Id.) 15 The matter proceeded to trial on several issues on September 27, 2017. (Minutes of Hearing, 16 September 27, 2017.) The parties stipulated to injury to applicant’s lungs, psyche, left eye, head and 17 brain. (Id. at p. 1.) The disputed issues included, in relevant part, 104 weeks of temporary disability 18 indemnity, permanent disability, apportionment and the following: 19 20 21 22 23 24 25 26 In terms of the psychiatric injury, the defendant asserts that under Labor Code Section 4660.1(2)(a)(b) [sic] that applicant is not entitled to indemnity and applicant asserts that this is a catastrophic injury and/or event/act and applicant is entitled to it. (Id. at p. 2.) The matter stood submitted and the following was noted on the record: If the court deems it necessary, the matter will be referred to the Disability Evaluation Unit, and if a rating issues, the parties will have the appropriate time to respond or request additional proceedings. If no request for additional proceedings is forthcoming, the matter will stand resubmitted at the appropriate legal time. 27 (Id. at p. 3.) 30 WILSON, Kris 8 1 On October 24, 2017, the WCJ issued rating instructions to the DEU for several body parts. No 2 request for a rating of the psychiatric injury was included with the instructions, nor was there an 3 instruction regarding apportionment. The record does not contain an objection by either party to the 4 rating instructions. The DEU rated applicant’s combined permanent disability to be 66%. 5 By the F&A, the WCJ found that applicant sustained 66% permanent disability “amounting to 6 399.25 weeks of permanent disability indemnity payable at the rate [sic] of $115,782.50.” (Findings and 7 Award, December 28, 2017, p. 1.) The WCJ also found that applicant did not sustain an injury to his 8 heart. Applicant was awarded additional temporary disability up to the 104 weeks.6 In his Opinion of 9 Judge on Decision, the WCJ explained the basis for not including impairment for the psychiatric injury in 10 the permanent disability rating: Under [section 4660.1(c)(2)(B)]7 a “catastrophic” [injury] allows compensation in terms of permanent disability. The Legislature includes certain examples which are loss of limb, paralysis, severe burn, or severe head injury. … The examples in the statute are obviously something that have exceptionally grave consequences that massively affect an individual’s ability to live an ordinary life. However, one can say that about many injuries. One can look at the dictionary definitions of catastrophic but obviously a great many injuries have a huge effect on an individual. Ultimately, the undersigned sometimes must look at the words of Justice Stewart and reach the conclusion that Justice Stewart did, certainly on an altogether different subject, “I know it when I see it”. It is not the consequences of an injury that are catastrophic but the injury itself. 11 12 13 14 15 16 17 18 19 (Opinion of Judge on Decision, December 28, 2017, p. 4.) 20 In his Petition, applicant only challenges the WCJ’s conclusion in the F&A that his psychiatric 21 22 injury is precluded from an increased impairment rating pursuant to section 4660.1(c). 23 24 25 26 6 Section 4656(c)(2) limits aggregate temporary disability payments for a single injury occurring on or after January 1, 2008 to 104 compensable weeks within a period of five years from the date of injury unless the injury is one of the injuries or conditions identified in section 4656(c)(3). (Lab. Code, § 4656(c)(2)-(3).) Temporary disability was awarded to applicant based on the psychological QME Dr. Walsh’s reporting. (Opinion of Judge on Decision, December 27, 2017, p. 3.) At a January 10, 2018 hearing subsequent to the F&A, the minutes state in relevant part that “Defendants paid 104 weeks of TD.” The Opinion of Judge on Decision incorrectly refers to “Labor Code Section 4661(c)(2)(B),” although the WCJ appears to have intended to cite to section 4660.1(c)(2)(B). (Opinion of Judge on Decision, December 28, 2017, p. 4.) 7 27 30 WILSON, Kris 9 1 DISCUSSION 2 The employee bears the burden of proving injury arising out of and in the course of employment 3 (AOE/COE) by a preponderance of the evidence. (South Coast Framing v. Workers’ Comp. Appeals Bd. 4 (Clark) (2015) 61 Cal.4th 291, 297-298 [80 Cal.Comp.Cases 489]; Lab. Code, §§ 3202.5, 3600(a).) 5 With respect to psychiatric injuries, section 3208.3(b) provides, in relevant part, as follows: 6 7 8 (1) In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. 11 (2) Notwithstanding paragraph (1), in the case of employees whose injuries resulted from being a victim of a violent act or from direct exposure to a significant violent act, the employee shall be required to demonstrate by a preponderance of the evidence that actual events of employment were a substantial cause of the injury. 12 (Lab. Code, § 3208.3(b)(1)-(2).) 9 10 13 14 Section 3208.3 was initially enacted as part of the Margolin-Greene Workers’ Compensation 15 Reform Act of 1989 with the express intent of establishing a new and higher threshold of compensability 16 for psychiatric injuries. (Lockheed Martin Corp. v. Workers’ Comp. Appeals Bd. (McCullough) (2002) 17 96 Cal.App.4th 1237, 1242 [67 Cal.Comp.Cases 245], citing Hansen v. Workers’ Comp. Appeals Bd. 18 (1993) 18 Cal.App.4th 1179, 1183-1184 [58 Cal.Comp.Cases 602].) Initially, subdivision (b) of section 19 3208.3 required the employee to demonstrate by a preponderance of the evidence that actual events of 20 employment were responsible for at least 10 percent of the total causation from all sources contributing 21 to the psychiatric injury. (McCullough, supra, at p. 1242, citing Stats. 1989, ch. 892, § 25, p. 3003.) 22 Section 3208.3 was amended in 1991 to add subdivision (d), which requires that the employee be 23 employed by that employer for at least six months in order to receive compensation for a psychiatric 24 injury, unless the psychiatric injury was caused by a sudden and extraordinary employment condition. 25 (See Matea v. Workers’ Comp. Appeals Bd. (2006) 144 Cal.App.4th 1435, 1445-1446 [71 26 Cal.Comp.Cases 1522]; Lab. Code, § 3208.3(d).) The statute was again amended in 1993 to increase the 27 causation threshold from 10 percent to its current form requiring causation attributable to actual events of 30 WILSON, Kris 10 1 employment be “predominant as to all causes combined.” (McCullough, supra, 96 Cal.App.4th at 2 p. 1243.) “Predominant as to all causes” has been interpreted to mean more than 50 percent.8 (Dept. of 3 Corrections v. Workers’ Comp. Appeals Bd. (Garcia) (1999) 76 Cal.App.4th 810, 816 [64 4 Cal.Comp.Cases 1356].) This causation threshold applies to psychiatric injuries pled as a compensable 5 consequence of a physical injury. (McCullough, supra, 96 Cal.App.4th at p. 1249.) 6 In addition to proving injury AOE/COE, the employee has the burden of establishing the 7 approximate percentage of permanent disability directly caused by the industrial injury. (Escobedo v. 8 Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc).) Section 4660.1 was enacted 9 as part of Senate Bill (SB) 863, which became effective January 1, 2013. (Stats. 2012, ch. 363, § 60.) 10 This statute governs how to determine permanent disability for injuries occurring on or after January 1, 11 2013 and provides as follows, in relevant part: (a) In determining the percentages of permanent partial or permanent total disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of injury. 12 13 14 (b) For purposes of this section, the “nature of the physical injury or disfigurement” shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) with the employee’s whole person impairment, as provided in the Guides, multiplied by an adjustment factor of 1.4. 15 16 17 18 19 (c) (1) Except as provided in paragraph (2), 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 injured employee to obtain treatment for sleep dysfunction, sexual dysfunction, or psychiatric disorder, if any, that are a consequence of an industrial injury. 20 21 22 23 (2) An increased impairment rating for psychiatric disorder shall not be subject to paragraph (1) if the compensable psychiatric injury resulted from either of the following: 24 25 26 27 30 8 Unless the injury resulted from being a victim of a violent act or from direct exposure to a significant violent act, in which case the employee must show that actual events of employment were a substantial cause (35 to 40 percent) of the injury. (Lab. Code, § 3208.3(b)(2)-(3).) WILSON, Kris 11 (A) Being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3. 1 2 (B) A catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury. 3 4 (Lab. Code, § 4660.1(a)-(c).) 5 6 Section 4660.1(c) does not bar an employee from claiming a psychiatric injury or obtaining 7 treatment or temporary disability for a psychiatric disorder that is a compensable consequence of a 8 physical injury occurring on or after January 1, 2013. Additionally, section 4660.1(c) does not apply to 9 psychiatric injuries directly caused by events of employment. Section 4660.1(c)(1) only bars an increase 10 in the employee’s permanent impairment rating for a psychiatric injury that is a compensable 11 consequence of a physical injury occurring on or after January 1, 2013. However, the employee may 12 receive an increased impairment rating for a compensable consequence psychiatric injury if the injury 13 falls under one of the statutory exceptions outlined in section 4660.1(c)(2). 14 Applicant’s injury occurred on May 13, 2014, i.e., after January 1, 2013, the effective date of 15 section 4660.1, and is therefore subject to section 4660.1. Defendant does not dispute that applicant has 16 sustained a psychiatric injury as a compensable consequence of his physical injury. However, the parties 17 dispute whether applicant may receive an increased impairment rating for his psychiatric injury under 18 section 4660.1(c). In order to receive an increased impairment rating for his psychiatric injury, applicant 19 bears the burden of proving his psychiatric injury was directly caused by events of employment, or, 20 alternatively, if the psychiatric injury is a compensable consequence of the physical injury, applicant 21 must show that the psychiatric injury resulted from either: 1) being a victim of a violent act or direct 22 exposure to a significant violent act, or 2) a catastrophic injury. 23 I. Applicant’s Psychiatric Injury Was Not Directly Caused By Events Of Employment. 24 An injury must be proximately caused by the employment in order to be compensable. (Lab. 25 Code, § 3600(a)(3); see also Clark, supra, 61 Cal.4th at pp. 297-298.) Proximate cause in workers’ 26 compensation requires the employment be a contributing cause of the injury. (Clark, supra, 61 Cal.4th at 27 pp. 297-298 [outlining this standard and analyzing the difference between causation in tort law and 30 WILSON, Kris 12 1 causation in workers’ compensation].) Causation of an injury may be either direct or as a compensable 2 consequence of a prior injury. More precisely, an injury may be directly caused by the employment. 3 Alternatively, a subsequent injury is a compensable consequence of the first injury where it “is not a new 4 and independent injury but rather the direct and natural consequence of the” first injury. (Carter v. 5 County of Los Angeles (1986) 51 Cal.Comp.Cases 255, 258 (Appeals Board en banc).) The “first injury 6 need not be the exclusive cause of the second but only a contributing factor to it…So long as the original 7 injury operates even in part as a contributing factor it establishes liability.” (State Compensation Ins. 8 Fund v. Industrial Acc. Com. (Wallin) (1959) 176 Cal.App.2d 10, 17 [24 Cal.Comp.Cases 302].)9 In 9 other words, if the first injury is a contributing cause of the second injury, the second injury is a 10 compensable consequence of the first injury. Whereas the first injury is directly caused by the 11 employment, a compensable consequence injury is indirectly caused by the employment via the first 12 injury.10 13 As discussed above, the proscription against an increased rating for psychiatric injuries in section 14 4660.1(c) does not apply to psychiatric injuries directly caused by events of employment. 11 Applicant 15 16 17 18 9 For example, in Wallin, a carpenter suffered an industrial injury to his eye when a rusty nail he was driving into the floor flew up and penetrated his eye. The eye injury was directly caused by a workplace accident. More than a year later, the carpenter was sawing lumber at home while still off work for his injury and amputated one of his fingers in part because he had double vision from his industrial eye injury. The finger amputation was a compensable consequence of the carpenter’s eye injury because the original eye injury was a contributing cause of the finger injury. 10 19 20 21 22 A subsequent injury may also be compensable where the first injury did not contribute to the subsequent injury, but the employment was still a contributing cause of the subsequent injury. (See e.g., Laines v. Workmen’s Comp. Appeals Bd. (1975) 48 Cal.App.3d 872 [40 Cal.Comp.Cases 365] [injury sustained in an automobile accident while en route to receive medical treatment for an industrial injury was compensable]; Southern California Rapid Transit Dist., Inc. v. Workers’ Comp. Appeals Bd. (Weitzman) (1979) 23 Cal.3d 158 [44 Cal.Comp.Cases 107] [injury sustained in an automobile accident while returning from delivering to the employer a return to work release for a previous industrial injury was compensable]; Rodgers v. Workers’ Comp. Appeals Bd. (1985) 168 Cal.App.3d 567 [50 Cal.Comp.Cases 299] [injury sustained while engaged in vocational rehabilitation for an industrial injury was compensable].) 11 23 24 25 26 27 30 See Madson v. Michael J. Cavaletto Ranches (February 22, 2017, ADJ9914916) [2017 Cal.Wrk.Comp.P.D.LEXIS 95], [increased permanent impairment rating for psychiatric injury was not barred by section 4660.1(c) where QME opined that applicant’s PTSD resulted from the industrial accident itself and not the physical injury]; see also City of Los Angeles v. Workers’ Comp. Appeals Bd. (Montenegro) (2016) 81 Cal.Comp.Cases 611 (writ den.) [the Appeals Board upheld finding that impairment for sexual dysfunction arising directly from the industrial injury in the form of prostate cancer was not barred by section 4660.1(c)]. Unlike en banc decisions, panel decisions are not binding precedent on other Appeals Board panels and WCJs. (See Gee, supra, 96 Cal.App.4th at p. 1424, fn. 6.) However, panel decisions are citable and we consider these decisions to the extent that we find their reasoning persuasive, particularly on issues of contemporaneous administrative construction of statutory language. (See Guitron v. Santa Fe Extruders (2011) 76 Cal.Comp.Cases 228, 242, fn. 7 (Appeals Board en banc).) Here, we refer to Madson and other panel decisions because they considered a similar issue. WILSON, Kris 13 1 contends in his Petition that his psychiatric injury was directly caused by events of employment and, 2 thus, he is entitled to an increased impairment rating for his psychiatric injury. 3 4 5 6 7 8 As quoted above, the psychological QME Dr. Walsh’s October 24, 2016 report contains the following relevant history: [Applicant] described feeling emotionally traumatized following his symptoms resulting from the fire and by his near death experience in the hospital following his injury. As reported above, he believes that he has a serious physical injury that may kill him, shorten his life or send him back to the hospital. He has a vivid memory of waking up while he was intubated at the hospital and this is re-experienced in a recurring nightmare approximately 2 to 3 times each week. 9 10 11 12 (Applicant’s Exhibit No. 10, Dr. Walsh’s Report, October 24, 2016, p. 14.) In his discussion section, Dr. Walsh opined: 15 Mr. Wilson has developed characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involved serious injury and threatened death. He is experiencing significant symptoms of anxiety and depression subsequent to work related injuries sustained while fighting a fire with resultant physical injuries, limitations and impairment. 16 (Id. at p. 24.) 13 14 17 18 In his re-evaluation report, Dr. Walsh further opined that “the primary injury, a Post-traumatic Stress 19 Disorder, arose out of the effects of and treatment for a compensable physical injury.” (Applicant’s 20 Exhibit No. 11, Dr. Walsh’s Report, April 14, 2017, p. 14.) 21 The evidence in the record reflects that the psychological QME concluded that applicant’s 22 psychiatric conditions were a compensable consequence of applicant’s physical injury following 23 exposure to the fire. Applicant’s PTSD was attributed to the effects of and treatment for his physical 24 injury, and his depression was deemed 75% related to his untreated PTSD and 25% related to not being 25 able to continue to work as a firefighter/EMT. (Id. at p. 18.) Applicant’s fears were reported to be 26 concentrated on his hospitalization and on potential future medical issues from his physical injury, not 27 from his exposure to the fire that led to his physical injury. 30 WILSON, Kris 14 1 Applicant’s psychiatric injury was not directly caused by events of employment, i.e., applicant 2 fighting the wildfire, but rather as a compensable consequence of his physical injury. Consequently, 3 applicant may only receive an increased impairment rating for his psychiatric injury if his injury qualifies 4 for one of the statutory exceptions in section 4660.1(c)(2). 5 Applicant’s Injury Did Not Result From Being A Victim Of A Violent Act Or Direct Exposure To A Significant Violent Act. II. 6 7 Panel decisions evaluating whether an injury may receive an increased impairment rating under 8 section 4660.1(c)(2)(A) have defined a “violent act” as an act that is characterized by either strong 9 physical force, extreme or intense force, or an act that is vehemently or passionately threatening. 12 10 The injury in this case occurred after applicant fought a wildfire for several hours during which 11 he was exposed to fumes and smoke from the fire. The prolonged exposure to fumes and smoke resulted 12 in an adverse physical reaction in multiple body parts. The record in this matter does not support a 13 finding that applicant’s injury resulted from a violent act as that phrase has been defined. 14 Applicant’s injury did not result from being a victim of a violent act or direct exposure to a 15 significant violent act, and he may not receive an increased impairment rating for his psychiatric injury 16 under section 4660.1(c)(2)(A). 17 III. 18 Interpretation Of Catastrophic Injury Under Section 4660.1(c)(2)(B). A. Meaning of “Catastrophic Injury” As Used In The Statute. 19 Section 4660.1(c)(2)(B) does not define a “catastrophic injury,” although the statute specifies that 20 it includes, but is “not limited to” certain injuries: loss of a limb, paralysis, severe burn, or severe head 21 injury. 22 “A fundamental rule of statutory construction is that a court should ascertain the intent of the 23 Legislature so as to effectuate the purpose of the law.” (DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 24 Cal.4th 382, 387 [58 Cal.Comp.Cases 286].) Our first task in construing a statute is to look to the 25 26 12 27 30 See Larsen v. Securitas Security Services (2016) 81 Cal.Comp.Cases 770 [2016 Cal.Wrk.Comp.P.D.LEXIS 237]; see also Madson, supra. WILSON, Kris 15 1 language of the statute itself. (Id.) Words in the statute are given their usual and ordinary meaning. 2 (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) Where the words of a statute are clear and 3 unambiguous, the plain language of the statute governs. (Id.; see also In re Young (2004) 32 Cal.4th 900, 4 906.) If, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such circumstances, we select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences. [Citation.] 5 6 7 8 9 (Day, supra, at p. 272, internal quotation marks omitted.) 10 11 Evaluation of whether an injury resulted from a “violent act” under section 4660.1(c)(2)(A) 12 focuses on the mechanism of injury. This focus on the mechanism of injury comports with the statute’s 13 language, which emphasizes the event causing the injury, rather than the injury itself: the statute 14 expressly refers to being a victim of or direct exposure to a violent “act.” The word “injury” is not in this 15 subsection. 16 4660.1(c)(2)(A) is therefore on the mechanism of injury, not on the injury itself. The focus in evaluating whether an injury qualifies for the exception in section 17 Conversely, the statutory language in section 4660.1(c)(2)(B) refers to a “catastrophic injury,” 18 and identifies four examples of injuries that are included. The word “catastrophic” is an adjective. The 19 focus in this subsection is consequently on the nature of the injury, rather than on the mechanism of 20 injury. This is illustrated by the specific types of injuries identified in the statute since they all focus on 21 the result of the injury: loss of a limb, paralysis, severe burn and a severe head injury represent particular 22 results from an industrial injury. Moreover, the Court of Appeal has previously specifically referred to 23 this subsection as creating an exception based on the “nature of the injury.” In Travelers Casualty & 24 Surety Co. v. Workers’ Comp. Appeals Bd. (Dreher) (2016) 246 Cal.App.4th 1101 [81 Cal.Comp.Cases 25 402], the Court of Appeal stated: 26 27 30 Had the Legislature intended to include the nature of the injury as a factor in the definition of a sudden and extraordinary employment condition, it knew how to do so. (See Lockheed Martin Corp. v. Workers’ WILSON, Kris 16 Comp. Appeals Bd. (2002) 96 Cal.App.4th 1237, 1245-1246 [117 Cal.Rptr.2d 865] [Legislature undoubtedly knows how to enact an exception]; § 4660.1, subd. (c)(2)(B) [setting forth exception for catastrophic injury].) 1 2 3 (Id. at p. 1108, emphasis added.) 4 5 While section 4660.1(c)(2)(B) identifies specific types of injuries that fall within the exception, 6 the statute expressly states “including, but not limited to,” which means this list is not exhaustive. 7 (§ 4660.1(c)(2)(B), emphasis added.) In other words, there are other types of injuries, not expressly 8 identified in the statute that may also be considered “catastrophic.” Black’s Law Dictionary does not define “catastrophic.”13 The American Heritage Dictionary 9 10 however, defines “catastrophic” as follows: 11 1. Of, relating to, or involving a catastrophe. 12 2. Relating to a serious illness or injury that results in a long period of incapacity and often high treatment costs. 13 (American Heritage Dict. (5th ed. 2019) <https://ahdictionary.com/word/search.html?q=catastrophic> [as of Feb. 15, 2019].)14 14 15 16 17 The broadness of the dictionary definition “[r]elating to a serious illness or injury” renders it 18 unsuitable for identifying what constitutes a catastrophic injury under section 4660.1(c)(2)(B). A “long 19 period of incapacity” is indefinite as to the actual length of time an employee would have to be 20 incapacitated for an injury to be deemed “catastrophic.” It is also unclear what monetary amount would 21 qualify as “high treatment costs.” 22 treatment costs may be relevant in evaluating whether an injury is catastrophic, these factors are not 23 dispositive. Reasonable minds could differ widely on whether an injury is “catastrophic” under the While the employee’s period of incapacity and the amount of 24 25 26 Black’s Law Dictionary does however define “catastrophe” as “[a] notable disaster; a more serious calamity than might ordinarily be understood from the term ‘casualty.’ Utter or complete failure.” (Black’s Law Dict. (6th ed. 1990) p. 219, col. 2.) 13 “When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word.” (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122.) 14 27 30 WILSON, Kris 17 A statute is “ambiguous” if its language is “susceptible of more than one 1 dictionary definition. 2 reasonable interpretation.” (McCullough, supra, 96 Cal.App.4th at pp. 1241-1242.) 3 B. The Legislative History And Intent In Enacting Section 4660.1(c). 4 While the statute’s plain meaning controls its interpretation, “[i]f the statutory language permits 5 more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, 6 legislative history, and public policy.” (Coalition of Concerned Communities, Inc. v. City of Los Angeles 7 (2004) 34 Cal.4th 733, 737.) “When the statutory language is ambiguous, the court may examine the 8 context in which the language appears, adopting the construction that best harmonizes the statute 9 internally and with related statutes.” (Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 10 Cal.4th 1143, 1152.) The words of a statute “must be construed in context, keeping in mind the nature 11 and obvious purpose of the statute where they appear.” (DuBois, supra, 5 Cal.4th at p. 388, quoting 12 Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [38 Cal.Comp.Cases 652].) 13 Since the phrase “catastrophic injury” is ambiguous as used in section 4660.1(c)(2)(B), we 14 consider extrinsic sources to “select the construction that comports most closely with the apparent intent 15 of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and 16 avoid an interpretation that would lead to absurd consequences.” (Day, supra, 25 Cal.4th at p. 272, 17 quoting People v. Coronado (1995) 12 Cal.4th 145, 151.) 18 accordance with the statute’s specific intent, as well as the overall purposes and policies governing the 19 workers’ compensation system. Our task is to construe the statute in 20 We start with the legislative history and intent in enacting section 4660.1(c). Subdivision (c) of 21 section 4660.1 was specifically referred to by the Legislature in enacting SB 863 in finding and declaring 22 as follows: 23 24 25 26 27 30 That the current system of determining permanent disability has become excessively litigious, time consuming, procedurally burdensome and unpredictable, and that the provisions of this act will produce the necessary uniformity, consistency, and objectivity of outcomes, in accordance with the constitutional mandate to accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character, and that in enacting subdivision (c) of Section 4660.1 of the Labor Code, the Legislature intends to eliminate questionable claims of disability when alleged to be caused by a disabling physical injury WILSON, Kris 18 arising out of and in the course of employment while guaranteeing medical treatment as required by Division 4 (commencing with Section 3200) of the Labor Code. 1 2 3 (Stats. 2012, ch. 363, § 1(b), emphasis added.) 4 5 The Senate Committee on Labor and Industrial Relations stated the following in its analysis of SB 863: 6 Limits psychological add-ons when calculating a PD rating to cases involving catastrophic injury or that involved a violent workplace incident, but requires all appropriate medical treatment for psychological injuries. 7 8 9 (Sen. Com. on Labor and Industrial Relations on Sen. Bill No. 863 (20112012 Reg. Sess.) Aug. 31, 2012, p. 5.) 10 Other committee analyses of SB 863 contain nearly identical language. (See e.g., Assem. Com. on 11 Insurance, Rep. on Sen. Bill No. 863 (2011-2012 Reg. Sess.) Aug. 31, 2012, p. 3.) In a Senate Rules 12 Committee Analysis, it was further stated: The bill specifically limits some of the “add-ons” that can be established by individualized proof – sleep disorders, sex disorders, and to a limited extent, psychological disorders – because these add-ons have greatly expanded in recent years, largely as a result of the inappropriately low permanent disability ratings that followed from the 2004 reforms. 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. 13 14 15 16 17 18 (Sen. Rules Com., Off. of Sen. Floor Analyses on Sen. Bill No. 863 (20112012 Reg. Sess.) Aug. 31, 2012, pp. 15-16.) 19 20 Review of this history reflects that the legislative purpose in enacting section 4660.1(c) was to 21 limit additional impairment for psychiatric injuries for “questionable claims of disability” and to reduce 22 the amount of litigation around permanent disability ratings. 15 By carving out two exceptions to the 23 24 25 26 27 30 15 The progression of changes to section 3208.3 also reflects a persistent legislative concern with limiting questionable claims of psychiatric injury. (See Hansen, supra, 18 Cal.App.4th at p. 1184 [the “Legislature’s expressed intent in enacting Labor Code section 3208.3 was to establish a new and higher threshold of compensability for psychiatric injury…[and the] apparent purpose in enacting subdivision (d) of section 3208.3 was to limit questionable claims for psychiatric injuries resulting from routine stress during the first six months of employment”]; Garcia, supra, 76 Cal.App.4th at p. 816 [the increase in the causation threshold from 10 percent to predominant as to all causes was intended to limit liability for psychiatric injury claims]; Wal-Mart v. Workers’ Comp. Appeals Bd. (Garcia) (2003) 112 Cal.App.4th 1435, 1439, fn. 4 [68 Cal.Comp.Cases WILSON, Kris 19 1 proscription against increased impairment ratings for psychiatric injuries, the Legislature indicated that 2 certain mechanisms and types of injury warrant permitting additional impairment under specific 3 circumstances. 4 C. Other Statutory Definitions Of “Catastrophic Injury” In California Law. 5 Although the legislative history reveals the intent of section 4660.1(c), it gives no insight as to 6 how the Legislature defined “catastrophic injury.” We therefore consider other statutes that utilize the 7 same wording and define this phrase. 8 9 10 11 12 13 There are two other code sections in the California statutes that define “catastrophic injury.” First, Education Code section 44043.5(a)(1): “Catastrophic illness” or “Injury” means an illness or injury that is expected to incapacitate the employee for an extended period of time, or that incapacitates a member of the employee’s family which incapacity requires the employee to take time off from work for an extended period of time to care for that family member, and taking extended time off work creates a financial hardship for the employee because he or she has exhausted all of his or her sick leave and other paid time off. 14 15 (Ed. Code, § 44043.5(a)(1).) 16 This code section refers to the catastrophic leave program permitting an employee of a school district or 17 county office to donate eligible leave credits to another employee when that employee or a member of 18 that employee’s family suffers from a “catastrophic illness or injury.” 19 20 21 22 23 Separately, Government Code section 19991.13(b)(1) provides as follows: Catastrophic illness or injury means an illness or injury that is expected to incapacitate the employee and that creates a financial hardship because the employee has exhausted all of his or her sick leave and other paid time off. Catastrophic illness or injury may also include an incapacitated family member if this results in the employee being required to take time off from work for an extended period of time to care for the family member and the employee has exhausted all of his or her sick leave and other paid time off. 24 25 26 27 30 (Gov. Code, § 19991.13(b)(1).) 1575] [section 3208.3 “imposes restrictions on claims for injury to the psyche that are filed after the employee is fired or laid off (§ 3208.3, subd. (e)) and prohibits compensation for injury caused by a ‘lawful, nondiscriminatory, good faith personnel action’ “].) WILSON, Kris 20 1 This code section permits certain government employees to transfer eligible leave credits to another 2 employee and is substantially similar to Education Code section 44043.5(a)(1) in its reference to an 3 injury “that is expected to incapacitate the employee.” 4 As with the “violent act” definition in Business and Professions Code section 7500.1(aa) 5 discussed in Larsen, these other code sections appear to have broadly defined “catastrophic injury” for 6 the statutes’ individual purposes. (See Larsen, supra, 81 Cal.Comp.Cases at p. 774, fn. 2.) When a word 7 is used in a particular sense in one part of a statute, it is presumed to have the same meaning if it appears 8 in another part of the same statute. (Delaney v. Baker (1999) 20 Cal.4th 23, 41, quoting People v. Dillon 9 (1983) 34 Cal.3d 441, 468.) However, this presumption “does not apply when the same or a similar 10 phrase appears in different statutory schemes with distinct designs and objectives. Establishing 11 terminological uniformity throughout our codified law is less important than discerning the intent of the 12 Legislature so as to effectuate the purpose of each individual statute.” (Delaney, supra, at p. 42, internal 13 quotation marks omitted, citing Phelps v. Stostad (1997) 16 Cal.4th 23, 32.) 14 Adoption of either of these statutory definitions would not adequately serve the specific 15 legislative purpose of section 4660.1(c). As discussed above, the legislative history of SB 863 indicates 16 that the statute was intended to limit an increased impairment rating for compensable consequence 17 psychiatric injuries to certain mechanisms and types of injury. A broad definition of a “catastrophic 18 injury” as an injury that “is expected to incapacitate the employee for an extended period of time” or as 19 an injury that “is expected to incapacitate the employee and that creates a financial hardship” would not 20 serve the legislative purpose of section 4660.1(c). In conclusion, we decline to adopt the definition of “catastrophic injury” contained in the 21 22 Education Code or Government Code for purposes of section 4660.1(c)(2)(B). D. Whether An Injury Is Catastrophic Is Not Measured By The Injury’s Impact On The Employee’s Earning Capacity Or A Minimum Level Of Permanent Disability. 23 24 25 Other jurisdictions have defined “catastrophic injury” as a specific impact on the employee’s 26 earning capacity or level of permanent disability.16 It is assumed that if the California Legislature wished 27 16 30 For example, federal law contains the following definition for federal public safety officers: “’catastrophic injury’ means an WILSON, Kris 21 1 to define “catastrophic injury” as an injury causing a specific impact to the employee’s earning capacity, 2 as some other jurisdictions have done, the Legislature would have explicitly done so. 3 Legislature did not do so, it is presumed that the Legislature did not intend to permit an increased 4 impairment rating for a psychiatric injury only in cases where the employee suffers a specific impact to 5 his or her earning capacity as a result of the injury.17 Since the 6 7 injury, the direct and proximate consequences of which permanently prevent an individual from performing any gainful work.” (34 U.S.C. § 10284(1).) Separately, for members of the uniformed services, federal law contains this definition: 8 …the term “catastrophic injury or illness” means a permanent, severely disabling injury, disorder, or illness that the Secretary concerned determines compromises the ability of the afflicted person to carry out the activities of daily living to such a degree that the person requires-(1) personal or mechanical assistance to leave home or bed; or (2) constant supervision to avoid physical harm to self or others. 9 10 11 12 13 14 15 16 (37 U.S.C. § 439(g).) The Supreme Court of Illinois found the phrase “catastrophic injury” to be ambiguous as used in its statutory scheme. (See Krohe v. City of Bloomington (2003) 204 Ill.2d 392, 395 [analyzing a statute that required payment of health insurance premiums by the employer if a firefighter suffered a catastrophic injury].) The Court ultimately defined the phrase as “an injury resulting in a line-of-duty disability” pursuant to the statute’s legislative history. (Id. at pp. 398-400.) A line-of-duty disability is paid to Illinois firefighters if “as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty or from the cumulative effects of acts of duty, [are] found to be physically or mentally permanently disabled for service in the fire department.” (Id. at p. 394, fn. 1, quoting 40 ILCS 5/4-110; see also Bremer v. City of Rockford (2016) 2016 IL 119889.) 17 18 19 20 21 22 Two states have defined catastrophic injury by specifically identifying the types of injuries that qualify with an additional subsection to include other injuries that render the employee permanently totally disabled. For example, North Dakota’s workers’ compensation statutes state: Catastrophic injury includes: (1) Paraplegia; quadriplegia; severe closed head injury; total blindness in both eyes; or amputation of an arm proximal to the wrist or a leg proximal to the ankle, caused by the compensable injury, which renders an employee permanently and totally disabled without further vocational retraining assistance; or (2) Those employees the organization so designates, in its sole discretion, provided that the organization finds the employee to be permanently and totally disabled without further vocational retraining assistance. 23 24 25 26 (N.D. Cent. Code, § 65-05.1-06.1(2)(c).) Georgia has a similar scheme in its workers’ compensation system. (See O.C.G.A. § 34-9-200.1(g) [definition of catastrophic injury identifies several specific types of injuries and then includes “[a]ny other injury of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified”].) 17 27 30 It is noted moreover that in determining permanent disability for injuries occurring on or after January 1, 2013, section 4660.1(a) does not require “consideration being given to an employee’s diminished future earning capacity” as required by section 4660 for injuries occurring before January 1, 2013. (Lab. Code, § 4660(a).) WILSON, Kris 22 1 Additionally, in interpreting a statute, we seek to “avoid an interpretation that would lead to 2 absurd consequences.” (Day, supra, 25 Cal.4th at p. 272.) Some jurisdictions define “catastrophic 3 injury” as permanent total disability or a total loss of earning capacity. The 2005 Schedule for Rating 4 Permanent Disabilities states that “[p]ermanent total disability represents a level of disability at which an 5 employee has sustained a total loss of earning capacity.” (2005 Permanent Disability Revised Schedule 6 (2005 PDRS), pp. 1-2 to 1-3.)18 A permanent disability rating from a single injury cannot exceed 100%. 7 (See Lab. Code, § 4664(c)(2).) A definition of catastrophic injury that required the employee to prove 8 the injury caused permanent total disability by showing a total loss of earning capacity would render an 9 increased impairment rating for a psychiatric injury superfluous. If an employee is already permanently 10 totally disabled from a physical injury, attempting to obtain an increased rating for a psychiatric injury 11 under section 4660.1(c)(2)(B) is a fruitless endeavor. (See Civ. Code, § 3532 [“[t]he law neither does 12 nor requires idle acts”].) 13 Section 4660.1(c)(2)(B) does not state a minimum level of permanent disability at which an 14 employee may be deemed to have sustained a catastrophic injury. As noted above, the Legislature knows 15 how to create an exception. (See Dreher, supra, 246 Cal.App.4th at p. 1108, citing McCullough, supra, 16 96 Cal.App.4th at pp. 1245-1246.) In creating the exception to section 4660.1(c)(1) for a catastrophic 17 injury, the Legislature could have defined the phrase as an injury resulting in a minimum level of 18 permanent disability. Since the Legislature chose not to do so, we may not define catastrophic injury as 19 an injury causing a minimum level of permanent disability.19 We are prohibited from adding provisions 20 to section 4660.1(c)(2)(B). (See Adoption of Kelsey S. (1992) 1 Cal.4th 816, 827 [courts may not add 21 22 23 24 25 26 27 30 18 Permanent disability for injuries occurring on or after January 1, 2013 must be rated using the 2005 PDRS until the schedule for age and occupational modifiers is amended pursuant to section 4660.1(d). (Lab. Code, § 4660.1(d).) 19 Additionally, the specified injuries in section 4660.1(c)(2)(B) may result in a range of permanent disability ratings. For example, a lower extremity amputation above the knee (i.e., loss of a limb) may have a 40% WPI rating pursuant to the AMA Guides. (American Medical Association Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (AMA Guides), Table 17-32, p. 545.) Before accounting for occupation and age, a 40% WPI rating multiplied by the statutory adjustment factor of 1.4 adjusts to 56% permanent disability. (§ 4660.1(b).) Alternatively, an upper extremity amputation at the shoulder level may have a 60% WPI rating pursuant to the AMA Guides. (AMA Guides, supra, at Table 16-4, p. 440.) Before accounting for occupation and age, a 60% WPI rating multiplied by 1.4 adjusts to 84% permanent disability. The range of possible ratings for one of the statutorily specified injuries suggests the Legislature did not intend to fix determination of a “catastrophic injury” to a particular level of permanent disability. WILSON, Kris 23 1 provisions to a statute].) Therefore, we also decline to measure whether an injury is catastrophic based on the injury’s 2 3 impact to the employee’s earning capacity or a minimum level of permanent disability. 4 IV. Determination Of Whether An Injury Is A “Catastrophic Injury” Under Section 4660.1(c)(2)(B) Focuses On The Nature Of The Injury And Is A Fact-Driven Inquiry. 5 6 Our review of extrinsic sources did not provide us with a clear, useable definition of “catastrophic 7 injury” for purposes of interpreting section 4660.1(c)(2)(B). However, based on our analysis, we 8 conclude that the statutory language of section 4660.1(c)(2)(B) focuses on the nature of the injury, as 9 reflected in the statutory examples included in the section by the Legislature. The nature of the injury 10 will vary with the individual circumstances of each case. Thus, determination of whether an injury is 11 catastrophic under section 4660.1(c)(2)(B) will be a fact-driven inquiry. 12 Section 4660.1(c)(2) permits an increased impairment rating “if the compensable psychiatric 13 injury resulted from” a catastrophic injury. (§ 4660.1(c)(2), emphasis added.) If the psychiatric injury is 14 a compensable consequence of the physical injury, the statute’s language reflects that the psychiatric 15 injury must result from a catastrophic injury in order for the employee to receive an increased rating for 16 the psychiatric injury. This indicates that the inquiry into whether an injury is catastrophic is limited to 17 looking solely at the physical injury, without consideration for the psychiatric injury in evaluating the 18 nature of the injury. The injury must therefore be deemed catastrophic independent of the psychiatric 19 injury. 20 Although the focus in determining whether an injury is catastrophic is on the physical injury, the 21 employee must prove the psychiatric injury was predominantly caused by actual events of employment in 22 order to receive an increased impairment rating under section 4660.1(c)(2)(B). 23 causation of a psychiatric injury requires competent medical evidence. (Rolda v. Pitney Bowes, Inc. 24 (2001) 66 Cal.Comp.Cases 241, 245 (Appeals Board en banc).) The causation threshold for a psychiatric 25 / / / 26 / / / 27 / / / 30 WILSON, Kris 24 Determination of 1 injury is predominant as to all causes combined. (Id.; § 3208.3(b)(1).)20 The evaluating physicians must 2 render an opinion as to whether the psychiatric injury was predominantly caused by actual events of 3 employment. The physicians must further specify if the psychiatric injury is directly caused by events of 4 employment or if the psychiatric injury is a compensable consequence of the physical injury. (See 5 McCullough, supra, 96 Cal.App.4th at p. 1249 [the precipitating physical injury constitutes an actual 6 event of employment for purposes of a compensable consequence psychiatric injury].) 7 The nature of the injury sustained is a question of fact for the WCJ. (Western Growers Ins. Co. v. 8 Workers’ Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227, 234 [58 Cal.Comp.Cases 323].) 9 Whether an injury is “catastrophic” under section 4660.1(c)(2)(B) is therefore a factual/legal issue for the 10 WCJ to determine. The WCJ, after considering all the medical evidence, and other documentary and 11 testimonial evidence of record, must determine whether the injury is “catastrophic” under section 12 4660.1(c)(2)(B). 13 A fact-driven analysis of whether an injury is catastrophic may encounter a range of 14 circumstances beyond the statutorily specified injuries covered by section 4660.1(c)(2)(B). There are 15 factors the trier of fact may consider in determining whether an injury may be deemed catastrophic. 16 These factors include, but are not limited to, the following, as relevant: 17 1. The intensity and seriousness of treatment received by the employee that was reasonably required 18 to cure or relieve from the effects of the injury. 19 2. The ultimate outcome when the employee’s physical injury is permanent and stationary. 20 3. The severity of the physical injury and its impact on the employee’s ability to perform activities of daily living (ADLs).21 21 22 23 24 25 26 As discussed above, section 3208.3(b)(2) provides that actual events of employment must be a “substantial cause of the injury” if the injury “resulted from being a victim of a violent act or from direct exposure to a significant violent act.” Substantial cause is defined as “at least 35 to 40 percent of the causation from all sources combined.” (§ 3208.3(b)(3).) If an employee shows that section 3208.3(b)(2) applies to his or her compensable consequence psychiatric injury, then presumably the injury would also qualify for an increased permanent impairment rating under section 4660.1(c)(2)(A). If an employee already qualifies for an increased rating under section 4660.1(c)(2)(A), determination of whether the injury is “catastrophic” under section 4660.1(c)(2)(B) is moot. 20 21 27 30 Activities of daily living include: 1) self-care, personal hygiene, 2) communication, 3) physical activity, 4) sensory function, 5) nonspecialized hand activities, 6) travel, 7) sexual function, and 8) sleep. (AMA Guides, supra, at Table 1-2, p. 4.) WILSON, Kris 25 1 4. Whether the physical injury is closely analogous to one of the injuries specified in the statute: loss 2 of a limb, paralysis, severe burn, or severe head injury. 3 5. If the physical injury is an incurable and progressive disease. 4 Not all of these factors may be relevant in every case and the employee need not prove all of 5 these factors apply in order to prove a “catastrophic injury.” This list is also not exhaustive and the trier 6 of fact may consider other relevant factors regarding the physical injury. In determining whether an 7 injury is catastrophic, the trier of fact should be mindful of the legislative intent behind section 4660.1(c). 8 V. 9 Applicant’s Injury Was “Catastrophic” Under Section 4660.1(c)(2)(B) And He May Receive An Increased Impairment Rating For His Psychiatric Injury. 10 We now apply the above analysis to the instant matter. As previously discussed, applicant has 11 sustained his burden of proving that his psychiatric injury was predominantly caused by his physical 12 injury pursuant to the psychological QME Dr. Walsh’s reporting.22 For the reasons discussed below, we 13 conclude that applicant’s injury was catastrophic and he may receive an increased rating for his 14 psychiatric injury under section 4660.1(c)(2)(B). 15 The evidence in the record reflects that the initial treatment for applicant’s industrial injury was 16 serious and life-threatening. Applicant presented to the hospital with multiple symptoms in several body 17 parts including fever, nausea, vomiting, a full-body rash, bilateral eye discharge, difficulty breathing, as 18 well as ulcers on his mouth and throat. He was placed in a medically-induced coma and suffered both 19 renal and respiratory failure. During his hospitalization, he also suffered from tremors. Applicant was 20 intubated, placed on oxygen for an extended period and remained in the hospital for approximately two 21 weeks before being discharged. 22 / / / 23 / / / 24 / / / 25 26 Causation for the psychiatric injury is not in dispute since defendant stipulated to injury to applicant’s psyche at trial. (Minutes of Hearing, September 27, 2017, p. 1.) 22 27 30 WILSON, Kris 26 1 The physical injury caused permanent impairment to multiple body parts pursuant to the medical- 2 legal reporting. The DEU calculated the following permanent disability ratings based on the QMEs’ 3 reports: 10% for pulmonary hypertension,23 18% for asthma,24 18% for pulmonary-induced respiratory 4 neuromuscular weakness, 33% for the left eye, 6% for headaches and 10% for mental status. Applicant’s 5 physical injury alone was found to have caused a combined permanent disability rating of 66%. 6 The medical reporting shows that applicant continues to suffer from the effects of his injury and 7 that it substantially impacts his ability to perform ADLs. 25 The medical-legal evaluators consistently 8 reported complaints of persistent fatigue, shortness of breath, weakness, inability to lift and difficulty 9 walking long distances or running. He was diagnosed with impaired cognition and memory, as well as 10 continued difficulty with sleep. The injury also impaired his vision. 11 Applicant attempted to return to work, but was unable to perform his job duties as a firefighter. 12 Three of the medical-legal evaluators concluded that applicant is unable to return to his work as a 13 firefighter because of his industrial injury. The injury has essentially been career-ending for applicant 14 who was only 28 years old at the time of his injury. 15 The evidence therefore supports that the intensive treatment and the lasting impact of the injury 16 on applicant have resulted in a catastrophic injury. Applicant’s injury is not the type of questionable 17 claim of disability that the Legislature sought to preclude from an increased impairment rating. 18 Consequently, applicant may receive an increased impairment rating for his psychiatric injury under 19 section 4660.1(c)(2)(B). 20 / / / 21 / / / 22 / / / 23 24 25 26 23 In his Opinion of Judge on Decision and rating instructions, the WCJ does not explain why he did not apply the apportionment of 50% to non-industrial allergies found by Dr. Grodan for applicant’s hypertension. 24 Again, the Opinion of Judge on Decision and rating instructions do not explain why the WCJ did not apply the apportionment of 20% due to non-industrial causes found by Dr. Ho for applicant’s asthma. We did not consider applicant’s reported psychiatric symptoms or how those symptoms impact his ability to perform ADLs in our analysis. 25 27 30 WILSON, Kris 27 1 In conclusion, we hold that determination of whether an injury is catastrophic under section 2 4660.1(c)(2)(B) focuses on the nature of the injury and is a fact-driven inquiry. We will rescind the F&A 3 and substitute a new F&A to include a finding of fact that applicant sustained a catastrophic injury and 4 may receive an increased impairment rating for his psychiatric injury. The issues of permanent disability 5 and apportionment will be deferred. The matter will be returned to the trial level for further proceedings 6 consistent with this opinion.26 7 / / / 8 / / / 9 / / / 10 / / / 11 / / / 12 / / / 13 / / / 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 25 26 27 30 26 The substituted F&A will include a finding of injury AOE/COE to the body parts stipulated to have sustained injury and pursuant to the medical-legal reporting in evidence since there was not a specific finding of injury AOE/COE in the original F&A. We will not retain the finding of no injury AOE/COE to the heart since this was not one of the disputed issues identified to be adjudicated at trial. We make no comment on the issue of injury AOE/COE to the heart and will defer this issue. WILSON, Kris 28 1 For the foregoing reasons, 2 IT IS ORDERED as the Decision After Reconsideration of the Workers’ Compensation Appeals 3 Board that the Findings and Award issued by the WCJ on December 28, 2017 is RESCINDED in its 4 entirety and the following is SUBSTITUTED in its place: 5 FINDINGS OF FACT 6 1. Applicant, Kris Wilson, while employed on May 13, 2014, as a firefighter (Group 490) by the Department of Forestry, sustained injury arising out of and in the course of employment to his lungs, psyche, left eye, head, and brain. 7 8 9 2. The issue of injury arising out of and in the course of employment to the heart is deferred. 10 11 12 13 14 15 16 17 3. Applicant sustained a catastrophic injury pursuant to section 4660.1(c)(2)(B) and may receive an increased impairment rating for his psychiatric injury. 4. Applicant is entitled to up to the 104 weeks of temporary disability indemnity. Defendant is entitled to credit for any periods of temporary disability previously paid. 5. Applicant is in need of further medical treatment to cure or relieve from the effects of the injury. 6. The issues of permanent disability and apportionment, and attorney’s fees thereon are deferred. 18 19 20 7. Applicant’s attorney is entitled to fees of 15% of any additional temporary disability owing to applicant. 21 8. The issue of the lien of the Employment Development Department is deferred. 22 AWARD 23 AWARD IS MADE in favor of KRIS WILSON, against CAL FIRE SAN LUIS OBISPO as follows: 24 25 26 27 30 a. Temporary disability in accordance with number 4 above. b. Future medical treatment in accordance with number 5 above. c. Attorney’s fees in accordance with number 7 above. WILSON, Kris 29 1 IT IS FURTHER ORDERED as the Decision After Reconsideration of the Workers’ 2 Compensation Appeals Board that the matter is RETURNED to the trial level for further proceedings 3 consistent with this opinion. 4 WORKERS’ COMPENSATION APPEALS BOARD (EN BANC) 5 /s/ Katherine A. Zalewski KATHERINE A. ZALEWSKI, Chair 6 7 /s/ Deidra E. Lowe DEIDRA E. LOWE, Commissioner 8 9 /s/ Marguerite Sweeney MARGUERITE SWEENEY, Commissioner 10 11 /s/ José H. Razo JOSÉ H. RAZO, Commissioner 12 13 /s/ Juan Pedro Gaffney R. JUAN PEDRO GAFFNEY R, Commissioner 14 15 /s/ Craig Snellings CRAIG SNELLINGS, Commissioner 16 17 18 19 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 20 21 22 23 24 05/10/2019 SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD. LAW OFFICE OF JOHN SPATAFORE KRIS WILSON STATE COMPENSATION INSURANCE FUND 25 26 27 30 AI/abs WILSON, Kris 30
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