In Wilson v. State of California Department of Forestry and Fire Protection, ADJ10116932 (filed 5/10/19), the Workers’ Compensation Appeals Board held in an en banc decision that determination of whether an injury is catastrophic in the context of increased impairment for compensable consequence injuries focuses on the nature of the injury and is a fact driven inquiry.
Mr. Wilson suffered industrial injury while reporting to a wildfire in Lompoc in May 2014 and claimed injuries to his lungs, psych, left eye, head, brain, heart, and circulatory system. He was evaluated by Panel Qualified Medical Evaluators (PQMEs) in several specialties, including a psychological PQME. In the initial report, the psychological PQME noted Mr. Wilson’s description of the trauma surrounding his hospitalization following his injury and diagnosed Mr. Wilson with a psychiatric disorder. In a subsequent re-evaluation report, the PQME opined that the psychiatric disorder was partially due to the direct effects of the injury and partially due to an inability to continue work as a firefighter/EMT.
At Trial, the issues disputed included whether Mr. Wilson was entitled to indemnity for the psychiatric injury he claimed arose from the physical injury. Mr. Wilson asserted that his psychiatric injury fell under one of the exceptions to California Labor Code section 4660.1(c)(2), in particular a catastrophic injury which should result in an increase in his overall permanent disability rating due to his compensable consequence injury to his psyche. The WCJ disagreed concluding that Mr. Wilson did not meet the exception for a catastrophic injury under the statute.
The Workers’ Compensation Appeals Board disagreed holding that Mr. Wilson sustained a catastrophic injury pursuant to section 4660.1(c)(2)(B) and may receive permanent disability for his psychiatric injury. The Board supported its conclusion in an analysis of section 4660.1(c). In enacting section 4660.1(c), the Legislature intended to limit additional impairment for “questionable claims of disability alleged to be caused by a disabling physical injury” by precluding increased impairment for sleep dysfunction, sexual dysfunction, or a psychiatric disorder arising out of a compensable physical injury. The Legislature, however, provides two exceptions to allow additional impairment, a victim of or direct exposure to a violent act or a catastrophic injury. A catastrophic injury had not previously been defined by the courts. The Board offered factors the trier of fact may consider to determine whether an injury may be catastrophic. The list is not exhaustive and other factors may be relevant. The factors include and are not limited to the following: The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve the effects of the injury; the ultimate outcome when the employee’s physical injury is permanent and stationary; the severity of the physical injury and its impact on the employee’s ability to perform activities of daily living; whether the physical injury is closely analogous to one of the injuries specified in the statute: loss of a limb, paralysis, severe burn, or head injury; if the physical injury is an incurable and progressive disease.
The Board conducted the fact driven analysis to determine that Mr. Wilson’s injury resulted in a catastrophic injury. The Board discussed Mr. Wilson’s hospitalization after the injury and described his initial treatment as life threatening and serious which included a medically-induced coma and both renal and respiratory failure. The Board opined that Mr. Wilson’s inability to continue to work as a firefighter and his ongoing complaints and effect on activities of daily living also supported the injury being catastrophic.
The flexibility and broadness of the factor analysis in the Wilson decision we anticipate will likely result in increased claims of permanent disability under 4660.1 (c)(2) arising from compensable physical injuries within the catastrophic injury exception and increased litigation.
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