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Sure S. Log

Sure S. Log
Mr. Log, of Counsel, is a specialist in workers' compensation defense and related labor law issues. He analyzes files for litigation and settlement, conducts research, reviews records to facilitate completion of discovery and drafts a variety of documents, including trial and appellate briefs. He was instrumental in a 2009 case that ended vocational rehabilitation in California.
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URGENT REPORT: City of Petaluma v. WCAB (Lindh): Apportionment to Risk Factors

Posted by Sure S. Log on Dec 12, 2018 10:31:07 AM

In 2004, the Legislature made a diametric change to the law on apportionment. Labor Code § 4663 was amended to allow apportionment to causation. Under this statute, employers are only liable for the percentage of permanent disability directly caused by the injury arising out of and in the course of employment.

Despite the changes in apportionment law, the WCAB has been reluctant to allow apportionment to "risk factors." Citing the well-established case of Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, the WCAB has frequently held that apportionment to risk factors was impermissible because it constituted apportionment of the injury and not apportionment of the disability.

On Dec. 10, 2018, the 1st District Court of Appeal addressed the issue of whether § 4663 allows apportionment to risk factors. In City of Petaluma v. WCAB (Lindh), the Court concluded the WCAB erred when it rejected a Qualified Medical Evaluator's (QME) apportionment, which the WCAB had characterized as apportionment to non-industrial risk factors.


In Lindh, the applicant worked as a law enforcement officer and claimed injury to his left eye. He sustained multiple blows to the left side of his head during a canine training course. After the training, he had severe headaches lasting hours or days. A month later, while off-duty, the applicant suddenly lost vision in his left eye.

The applicant was evaluated by two physicians, one at Kaiser and one at the University of California, San Francisco (UCSF), and neither believed the vision loss was related to the blows to his head. The applicant was then evaluated by a QME, who reported that the blood circulation to the left eye was defective.

The QME reported that absent the work-related injury, the applicant "most likely would have retained a lot of his vision in that eye," although he could not "guess" how much. The QME agreed it was possible the applicant could have gone his whole life without losing vision, but also agreed that even without the blows to the head, the applicant still could have lost vision due to his underlying condition. The QME found it was unlikely the applicant would have suffered a vision loss if he had not had the underlying condition of vascular spasticity, a condition that is rare.

The QME initially apportioned 90 percent of the applicant's disability to the underlying condition, meaning "[v]asospastic-migraine body type," and 10 percent due to the stress of the injuries. He later apportioned 85 percent of the permanent disability to the old condition and 15 percent to his industrial injury.

The WCJ rejected the QME's apportionment analysis and found the applicant had 40 percent permanent disability without apportionment. The WCAB affirmed the decision. It explained the QME's "opinion establishes that applicant’s preexisting hyperreactive type personality and his asymptomatic . . . preexisting systemic hypertension and vasospasm were mere risk factors that predisposed him to having a left eye injury, but the actual injury and its resultant disability (i.e., the left eye blindness) were entirely caused by industrial factors.” It stated, “[A]n opinion that bases apportionment upon the percentage to which non-industrial risk factors contributed to causing the injury is not substantial evidence that legally justifies apportionment.” The WCAB found the QME had “confused causation of injury with causation of disability” and that “there is no legally valid basis for apportionment in this case.”


The 1st District Court of Appeal annulled the decision and held that apportionment was required based on the QME's opinion. It began its opinion with a history of 2004 amendments to apportionment and a discussion of cases which applied the amended apportionment statutes. The Court found the QME understood the distinction between the causes of an injury and the causes of a disability, and the QME concluded that the same analysis applied to both. Although the QME referred to the underlying condition as putting the applicant at a higher risk of suffering the disability, the Court found this did not change the fact the applicant had an underlying condition that was, along with the work-place injury, a cause of his impaired vision.

The Court added that the applicant seemingly conflated his asymptomatic condition — vasospasticity personality and vasculature — with his history of migraine headaches, which he also characterizes as simply a “risk factor.” Nevertheless, the Court stated, "But even if characterized as a 'risk factor,' his history of migraines reflected an underlying condition that in [the QME's] opinion was largely the cause of his loss of vision." The Court also found the QME's opinion was consistent with the doctors at UCSF and Kaiser, who both found it was unlikely the industrial head trauma caused the subsequent loss of vision.

The Court rejected the applicant's argument that his disability could not be apportioned, because his preexisting, asymptomatic condition might never have resulted in disability or vision loss. This argument reflected the state of law prior to the 2004 amendments. It explained, "Under the current law, the salient question is whether the disability resulted from both nonindustrial and industrial causes, and if so, apportionment is required. ([Citations].) Whether or not an asymptomatic preexisting condition that contributed to the disability would, alone, have inevitably become manifest and resulted in disability, is immaterial."

The Court explained that "the post-amendment cases uniformly focus on whether there is substantial medical evidence the disability was caused, in part, by nonindustrial factors, which can include 'pathology and asymptomatic prior conditions for which the worker has an inherited predisposition.' ([Citation])." The Court found no merit to applicant's claim that there can be no apportionment to a condition that caused no disability prior to the work-related injury stating, "By definition, an asymptomatic preexisting condition has not manifested itself and, thus, by definition has not caused a prior disability."

The Court concluded the QME's opinion constituted substantial evidence on the issue of apportionment. It remanded to the WCAB with directions to issue an award apportioning the applicant's disability 85 percent to his preexisting condition and 15 percent to his industrial injury.


With the exception of Hikida v. WCAB (2017) 12 Cal.App.5th 1249, every appellate-level decision interpreting apportionment under the 2004 reforms has favored employers. In BrodieE.L. Yeager, and Acme Steel, the courts upheld a doctor's authority to apportion an applicant's disability to pathology and asymptomatic causes. In Benson, the court allowed apportionment between industrial injuries. Finally, in Rice, the court rejected the WCAB's decision that it was impermissible to apportion to immutable factors allowed apportionment to heredity or genetic factors.

Lindh is the next case in that line. It eliminates a pathway that had been used by the WCAB to find a doctor's opinion insubstantial on the issue of apportionment. In the past, the WCAB has refused to allow apportionment to pre-existing diabetes, hypertension, hyperlipidemia, obesity, a history of smoking, and family history by characterizing these as "risk factors" and not causative factors. (See e.g., United Airlines v. WCAB (Milivojevich) (2007) 72 Cal.Comp.Cases 1415 (writ denied); Anderson v. Jaguar/Landrover of Ventura (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 327; Ricken v. County of Riverside (2015) 2015 Cal. Wrk. Comp. P.D. LEXIS 696; Martinez v. County of Alameda (2018) 2018 Cal. Wrk. Comp. P.D. LEXIS 17.) The WCAB itself never defined what constituted a "risk factor" and how it differed from a factor that could be apportioned. Instead, the WCAB took it upon itself to determine what factors were apportionable.

Under Lindh, this approach is no longer permissible. Along with the other cases, Lindh allows doctors to determine "what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury" as required by § 4663(c).

This, however, does not mean that every physician's apportionment opinion will be adopted. Lindh recognized that the mere fact a physician’s report apportions causation is not conclusive and stated that "the post-amendment cases uniformly focus on whether there is substantial medical evidence the disability was caused, in part, by nonindustrial factors. In Lindh, the Court performed a thorough review of the QME's finding before finding it constituted substantial evidence

Therefore, although the law generally favors employers on the issue of apportionment, they still have the burden of proving that apportionment applies. The WCAB still retains authority to determine whether a doctor's opinion constitutes substantial evidence and to issue an unapportioned award if the apportionment opinion is not substantial. But, to reject a doctor's opinion on apportionment, the WCAB must explain why an opinion should not be followed. It can no longer simply reject apportionment by characterizing the non-industrial factors as "immutable factors" or "risk factors."

Lindh may be obtained from the California Courts' Website at the following:


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Topics: Announcements

URGENT REPORT: Civil Claims Against Utilization Review Physicians

Posted by Sure S. Log on Aug 27, 2018 1:26:38 PM

The exclusive remedy rule limits an employee's remedies against an employer for injuries sustained during the course of the employment. The purpose of the exclusive remedy rule is to protect the employer's side of the compensation bargain. Under the compensation bargain, the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is given relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.

Labor Code § 3852, however, expressly provides that a workers' compensation claim "does not affect his or her claim or right of action for all damages resulting from the injury or death against any person other than the employer." Therefore, although the exclusive remedy provisions of the Labor Code restrict civil actions against a negligent employer, the exclusive remedy rule does not preclude the employee from suing a third party whose conduct was a proximate cause of the injury.

The exclusive remedy rule has been extended to insurers and claims administrators as the alter ego of the employer. (See Marsh & McLennan, Inc. v. Superior Court (1989) 49 Cal. 3d 1; Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal. 4th 800.) But, physicians within the workers' compensation system have not enjoyed the same protections.

In appropriate circumstances, a treating physician may be sued for medical malpractice for rendering negligent medical treatment for an injured worker. (See Duprey v. Shane (1952) 39 Cal. 2d 781; Sturtevant v. County of Monterey (1991) 228 Cal. App. 3d 758).) Furthermore, even though a medical-legal physician may not be sued for providing an opinion (Keene v. Wiggins (1977) 69 Cal. App. 3d 308), a medical-legal physician may be sued for negligence or professional malpractice for injuries incurred during the examination itself. (Mero v. Sadoff (1995) 31 Cal. App. 4th 1466.)

One of the issues that has arisen within the workers' compensation system is whether utilization review physicians may be sued for negligence. Unlike other physicians, utilization review physicians do not physically evaluate injured workers; they assess the medical necessity of a request for treatment by reviewing medical records submitted with the request and determine whether the treatment is consistent with the Medical Treatment Utilization Schedule or other evidence-based guidelines.

One of the issues that has arisen within the workers' compensation system is whether utilization review physicians may be sued for negligence. Unlike other physicians, utilization review physicians do not physically evaluate injured workers; they assess the medical necessity of a request for treatment by reviewing medical records submitted with the request and determine whether the treatment is consistent with the Medical Treatment Utilization Schedule (MTUS) or other evidence-based guidelines.

In King v. CompPartners, Inc., the California Supreme Court held workers' compensation law provides the exclusive remedy for an employee who alleges injuries caused by a utilization reviewer's denial of medical treatment. In that case, an employee suffered a series of four seizures after a utilization reviewer denied a request for medication. The employee and his wife filed a civil tort claim against the reviewer and others alleging they caused him additional injuries by denying medications prescribed by his treating physician without authorizing a weaning regimen or warning him of the possible side effects of abruptly ceasing the medication. The Supreme Court reversed the Court of Appeal's decision that the employee could potentially could assert a civil tort claim against a utilization review doctor.

It explained the Workers' Compensation Act (WCA) exclusivity provisions preempt not only those causes of action premised on a compensable workplace injury, but also those causes of action premised on injuries collateral to or derivative of such an injury. The Court explained the utilization review provisions of the WCA govern not only the substance of a utilization review decision, whether based on medical necessity or otherwise, but also the content of the responses communicating the decision. It concluded the harm plaintiffs alleged was collateral to and derivative of that industrial injury and arose within the scope of the employee's employment for purposes of the workers’ compensation exclusive remedy.

The Supreme Court noted that that while the WCA preserves the right of employees to sue third parties, it held that workers’ compensation exclusivity preempts tort claims against certain persons and entities hired by employers, and this included utilization reviewers hired to carry out the employer's statutory claims processing functions. It explained that in performing their statutory functions, utilization reviewers stand in the shoes of employers: they perform utilization review on behalf of employers, to discharge the employers’ own responsibilities to their employees.

The Supreme Court added that utilization reviewers are tasked with making judgments on a limited set of documents pursuant to defined criteria and subject to further review only through statutorily specified procedures. It believed that permitting plaintiffs to bring tort suits against utilization reviewers, in the same manner as they might bring tort suits against treating physicians, would subject utilization reviewers to a second—and perhaps competing—set of obligations rooted in tort rather than statute.

The Supreme Court, however, noted that workers' compensation exclusivity does not bar tort remedies for acts that fall outside the risks encompassed within the compensation bargain. It believed that in other cases, a plaintiff could argue that a utilization reviewer's conduct exceeded the bounds of its role and that workers' compensation exclusivity should not apply. But, because the acts alleged in that case did not suggest the defendants stepped outside of the utilization review role contemplated by statute, the plaintiffs' claims were pre-empted.

Therefore, under this decision, utilization review physicians will be generally covered by the exclusive remedy rule. Injured workers may not sue them in civil court for their decisions to deny or modify requested treatment, even if the decision was mistakenly made. Injured workers may only seek civil remedies against utilization review physician where they engage in extreme and outrageous conduct and in effect step outside of their normal roles in the workers’ compensation system. Given that utilization reviewers must follow specified procedures in carrying out their duties, it will be very difficult for injured workers to make such claims.

On a final note, the Supreme Court believed the Legislature enacted sufficient safeguards to protect employees against abuse in the utilization review process such as rules precluding discontinuation of care, administrative penalties, professional discipline, and employers being responsible for paying benefits to workers who suffer injuries as a result of the utilization review process. However, in one concurring opinion, Justice Liu questioned whether the utilization review process was working as intended, and whether the utilization review requirements are enough to prevent similar injuries in the future. In another concurring opinion, Justice Cuéllar explained that the Court’s understanding of the utilization review statute’s purpose may have differed if the Legislature had failed to provide any safeguards, incentives, or remedies, and added that those safeguards may not be set at optimal level. Both concurring justices stated that the Legislature may wish to examine whether the existing safeguards were sufficient.

Accordingly, there is no doubt that deference was given to the Legislature’s plenary power over the workers’ compensation system. As it stands, injured workers are generally limited to seeking workers’ compensation remedies for any adverse decisions by a utilization review doctor. Any penalties or sanctions against a utilization review doctor or utilization review organization will be limited to those set out in the statutes or administrative regulations. Any additional penalties or sanctions will need to be adopted by the Legislature, not the courts.

By Sure Log exclusively for Sullivan on Comp.

Topics: Announcements

What Qualifies as a Request for a Medical Evaluation Pursuant to Labor Code 4060?

Posted by Sure S. Log on Apr 25, 2018 10:45:00 AM

In disputed cases, parties often rush to request a panel QME in a desired specialty. Per Labor Code § 4062.2(b), when an employee is represented by an attorney seeking an evaluation under § 4060, a QME panel may be requested "No earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060 ...." The mailbox rule extends this time period for five calendar days if the physical address of the party being served with the first written proposal is within California. But what is a "request for a medical evaluation pursuant to Section 4060"?

Shortly after SB 863 became effective, the DWC issued a Newsline stating that for disputes over compensability under § 4060, a QME panel request must include a written objection that a compensability examination is required.[1] Practitioners generally understood this to mean that a party must issue a letter notifying the opposing party that a panel QME under § 4060 will be requested before actually requesting it.

In Bahena v. Charles Virzi Construction, 2014 Cal. Wrk. Comp. P.D. LEXIS 638, however, the WCAB determined that notifying the opposing party that, per § 4060, a panel QME will be requested was not required in all cases. The WCAB found a request to be proper when the applicant simply waited until 10 days after the defense denied the case.

Bahena explained that SB 863 was intended to streamline the AME/QME process to eliminate unnecessary delays and friction in the system. It believed that the changes enacted by SB 863 to the process of obtaining a comprehensive medical evaluation for represented employees in denied injury cases were intended to bring that process more in line with the procedures for unrepresented employees. The WCAB added that once a denial letter is issued, if a medical evaluation is required to determine compensability, no purpose is served by holding up that process until one party sends a letter to the other to initiate it. The WCAB confirmed this interpretation in a subsequent case. (Lopez v. California Pizza Kitchen, 2016 Cal. Wrk. Comp. P.D. LEXIS 399.)

Since then, the issue of whether a delay letter may qualify as "a request for a medical evaluation pursuant to Section 4060" arose. In Montoya v. Burger Buddies, LLC dba Carl's Jr. Restaurant, 2016 Cal. Wrk. Comp. P.D. LEXIS 242, the WCAB upheld a WCJ's decision allowing an applicant to request a QME panel by submitting the defendant's delay letter with his request. The WCJ analogized the situation to Bahena, and explained that although the matter involved a delay letter rather than a denial letter, the purposes for allowing a compensability examination in accordance with § 4060 were the same.

More recently, however, in Rayo v. Certi-Fresh Foods, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 58, the WCAB upheld a WCJ's decision that an applicant's request for a chiropractic panel pursuant to § 4060 was premature and invalid because a delay letter did not qualify as a "mailing of a request for a medical evaluation pursuant to Section 4060." The WCJ distinguished Bahena because that case involved a denial letter, not a delay letter, and the denial in Bahena included a fact sheet about the QME process and a form to be used for requesting a panel QME. In Rayo, the WCJ concluded that the prerequisites for requesting a panel had not taken place at the time the panel was requested.

Montoya and Rayo reached entirely different results on whether a delay letter could trigger the QME process. Although it is possible that the WCAB in both cases deferred to the WCJs finding that the petitioners had not established substantial prejudice or irreparable harm for the purposes of removal, more likely the WCAB was guided by the facts of each case.

In Bahena, it was specifically noted that a QME panel request form was enclosed with the denial. Similarly, in Montoya, the WCJ found that the defendant's delay letter indicated that a § 4060 evaluation would be needed to complete the investigation. California Code of Regulations Title 8 § 9812(g)(3) provides that if a defendant notifies an employee that it is requesting a comprehensive medical legal evaluation, the delay notice must be accompanied by a QME request form. So in those cases, the WCAB allowed a denial letter or a delay letter to trigger the QME process because they were accompanied by the form. But in Rayo, the WCJ found nothing in the delay letter that reasonably could be described as "a request for a medical evaluation pursuant to section 4060."

The administrative regulations contemplate that providing a QME panel request form will trigger the process for obtaining a QME under § 4060. Per CCR Title 8 § 9812(g)(3) and § 9812(i)(1)(B), if an employee is provided with a QME request form in a delay or denial letter, respectively, the employee must be given the same notification in both letters. The letters must state, "If you do not submit the form within 10 days, we will have the right to submit the form."

So, although the cases have focused mostly on whether a denial letter or a delay letter qualifies as "a mailing of a request for a medical evaluation pursuant to Section 4060," it might be that neither alone qualifies. It might be that a denial letter or delay letter may trigger the QME process under § 4060 only if accompanied by QME panel request form.

Topics: Case Law Updates

Use of the Fifth Amendment in Workers' Compensation

Posted by Sure S. Log on Mar 20, 2018 5:00:00 PM

The Fifth Amendment to the United States Constitutes protects individuals from being forced to testify against themselves. Although the Fifth Amendment itself states that a person shall not "be compelled in any criminal case to be a witness against himself," it has been held that, "It also privileges a person not to answer official questions in any other proceeding, civil or criminal, formal or informal, where he or she reasonably believes the answers might incriminate him or her in a criminal case." (Spielbauer v. County of Santa Clara (2009) 45 Cal. 4th 704, 714.) Accordingly, the Fifth Amendment privilege against self-incrimination also is recognized in workers' compensation proceedings.

Defendants, of course, generally have a due process right to cross-examine an injured worker in relation to a workers' compensation claim. (See Ogden Entertainment Services v. WCAB (2014) 80 CCC 1.) So, are there any consequences for an injured worker who "pleads the Fifth" in response to questions relating to a workers' compensation claim? Does a defendant have any remedies?

In older civil cases, the Court of Appeal held that a party to a civil action may not invoke the Fifth Amendment on matters directly relevant to his or her recovery. One court explained, "The patient-litigant exception precludes one who has placed in issue his physical condition from invoking the privilege on the ground that disclosure of his condition would cause him humiliation." It stated that a litigant "cannot have his cake and eat it too." (Newson v. City of Oakland (1974) 37 Cal. App. 3d 1050, 1055.) Furthermore, in Shepherd v. Superior Court (1976) 17 Cal. 3d 107, 117, the California Supreme Court stated that "a party seeking civil relief in the courts may not refuse on the grounds of the privilege to testify on matters relevant to his recovery."

But in People v. Holloway (2004) 33 Cal. 4th 96, 131, the California Supreme Court overruled Shepherd in part because it was inconsistent with Evidence Code § 913, which states in part that "no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding." It also held that Evidence Code § 913 applies in both criminal and civil cases.

Following Holloway, in some cases, the WCAB continued to find that there could be negative consequences against applicants who invoked the Fifth Amendment. In Vargas v. Select Staffing, 2010 Cal. Wrk. Comp. P.D. LEXIS 548, the WCAB found that Hollowaypartially overruled Shepherd only with regard to the inference that may be drawn from exercise of the privilege. The WCAB held that although it could not compel the applicant to testify in violation of her privilege against self-incrimination, there was an equally compelling constitutional guarantee prohibiting it from awarding her benefits without according the defendant the right to cross-examine her, present rebuttal evidence and, generally, to defend against a claim while allowing the applicant to hide behind a "cloak of privilege." The WCAB instructed that an applicant's case could be dismissed if he or she did not answer "directly relevant" questions.

In two recent cases, however, the WCAB has refused to penalize applicants who asserted the Fifth Amendment right against self-incrimination. In Camacho v. Pirate Staffing, 2017 Cal. Wrk. Comp. P.D. LEXIS 531, the WCAB held that a WCJ erred when he drew an adverse inference because an applicant, following the advice of his attorney, asserted his privilege against self-incrimination with respect to questioning about his Social Security number. It explained that under Cal. Code Regs. Title 8 § 10400(h), disclosure of an applicant's Social Security number is voluntary, not mandatory, and that failure to provide the number will have no adverse consequences. It also found that working under different Social Security numbers did not reflect on the applicant's credibility or the legitimacy of his claim.

Similarly, in Shemet v. Perry, 2018 Cal. Wrk. Comp. P.D. LEXIS 22, the WCAB upheld a WCJ's finding that an applicant suffered a compensable injury based on the QME's report, and that the defendant was not denied due process, even though it could not cross-examine the applicant at trial because he claimed his Fifth Amendment rights. The WCAB found that the defendant did not offer proof at the time of trial as to what questions it sought to ask, but were prevented from asking, that were directly relevant to the defense of the applicant's claim. It found that the defendant did not claim it was prevented from cross-examining the applicant during his deposition regarding the allegedly illegal activities. It also found that the defendant did not offer the applicant's depositions into evidence at trial or attempt to have them introduced once he invoked the Fifth Amendment privilege. The WCAB concluded that the defendant failed to exercise diligence in pursuing its rights.

It is clear that the WCAB may not make an adverse inference based on an applicant's assertion of the Fifth Amendment right against self-incrimination. But it is not clear whether other remedies, such as dismissal, might be warranted. Camacho and Shemet did not reject the WCAB's decision in Vargas holding that an applicant's claim may be dismissed if he or she fails to answer directly relevant questions, but found that defendants in those cases failed to establish that the applicants failed to answer directly relevant questions.

So, although this issue will require further legal development, defendants seeking to assert that they are prejudiced by invocation of the Fifth Amendment must be prepared to show how the required information is directly relevant, and how they diligently pursued the information.

Topics: Case Law Updates

Psychiatric Impairment Under Labor Code § 4660.1(c)

Posted by Sure S. Log on Sep 11, 2017 8:51:35 AM


      Labor Code § 4660.1 was enacted as a part of SB 863 to further the Legislature's effort to reduce workers' compensation costs. Under § 4660.1(c), "[T]here 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." Section 1 of SB 863 explains 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 arising out of and in the course of employment …"     

As a result, in the years after SB 863 took effect in 2013, practitioners saw fewer filings of add-on claims for psychiatric disability. SB 863, however, did not eliminate add-on psychiatric claims entirely. It was intended only to "eliminate questionable claims of disability." The WCAB has increasingly limited the psychiatric claims barred by § 4660.1(c).

      First, the WCAB has held that § 4660.1(c) bars add-on claims of permanent impairment only when they arise out of a compensable physical injury. That is, a psychiatric impairment is barred by § 4660.1(c) only if it is a compensable consequence of a physical injury. If the psychiatric impairment arises directly from an accident, as opposed to physical injuries from the accident, § 4660.1(c) is inapplicable. (See Allen v. Carmax, 2017 Cal. Wrk. Comp. P.D. LEXIS 303.)

      Second, even if a psychiatric impairment flows from a physical injury, under § 4660.1(c)(2), the impairment may be compensable if it resulted from either: (A) being a victim of a violent act or being directly exposed to a significant violent act within the meaning of § 3208.3; or (B) a catastrophic injury, including, but not limited to, loss of limb, paralysis, severe burn or severe head injury.

      With respect to the violent act exception, the WCAB has adopted a broad definition of the term. It has held that a violent act is not limited to criminal or quasi-criminal activity, and may include other acts characterized by strong physical force, extreme or intense force or are vehemently or passionately threatening. So the WCAB has applied the exception to motor vehicle accidents (Larsen v. Securitas Security Services (2016) 81 CCC 770; Madson v. Michael J. Cavaletto Ranches, 2017 Cal. Wrk. Comp. P.D. LEXIS 165) and a tree trimmer's fall from a 20-foot tree (Torres v. Greenbrae Management, 2017 Cal. Wrk. Comp. P.D. LEXIS 230).

      As for a catastrophic injury, the WCAB has recognized that there is no easy definition of the term. But it will apply the exception on a case-by-case basis when appropriate. In one case, a worker’s hand was crushed in a hydraulic press, causing a “severe, mangling injury” that resulted in partial amputation. The WCAB found that the accident qualified as a catastrophic injury (Guerrero v. Ramcast Steel Fabrication, 2017 Cal. Wrk. Comp. P.D. LEXIS 285).

      An injured employee, then, has two paths toward obtaining permanent disability for a psychiatric injury. Psychiatric impairment may be compensable either because it arises directly from an injury or employment events, or because it satisfies the WCAB's broad definitions of a violent act or catastrophic injury.

      In addition, the WCAB has explained that § 4660.1(c) governs only the collection of permanent disability benefits. That section expressly allows injured workers to receive medical treatment for psychiatric injury that flows from a physical injury. It does not preclude an employee from collecting temporary disability benefits from an add-on psychiatric injury (Lopez v. General Wax Co., Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 291). Also, it does not preclude an employee from requesting a psychiatric QME panel to assess whether he or she requires medical care or temporary disability indemnity on a psychiatric basis (Hernandez v. Fremont Bank, 2015 Cal. Wrk. Comp. P.D. LEXIS 470).

      So, although § 4660.1(c) has and will continue to limit the number and types of psychiatric claims that may be filed, it was never intended to eliminate psychiatric claims entirely. The WCAB retains significant authority to determine whether an employee is entitled to disability benefits and medical treatment as a result of a psychiatric condition. 

Topics: Case Law Updates