Vocational Evidence and LC 4660.1(c)
For injuries on or after Jan. 1, 2013, Labor Code 4660.1(c)(1) states that "the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase." LC 4660.1(c)(2)(A)(B), however, specifies two exceptions allowing an increased impairment rating for a psychiatric disorder. An employee may receive such a rating by proving that the injury resulted from either: (1) being a victim of a violent act or direct exposure to a significant violent act; or (2) a catastrophic injury. Moreover, the WCAB continues to hold that the permanent disability schedule under LC 4660.1 can be rebutted by vocational evidence.
How should LC 4660.1(c)(1) be applied if the employee is unable to return to the open labor market as a result of his or her physical injury in addition to a compensable consequence psychological disorder? The issue was addressed recently in the case of Schaan v. Jerry Thompson & Sons, 2022 Cal. Wrk. Comp. P.D. LEXIS 264.
In Schaan, the applicant claimed a cumulative trauma injury through 2015, alleging an internal injury and injuries to his shoulders and psyche, among other body parts. He had seven surgeries on his shoulders, four on the left shoulder and three on the right. He was evaluated by QMEs in orthopedics, internal medicine and psychiatry, who assigned various whole person impairments. The applicant also was evaluated by vocational experts, and his vocational expert reported that he very depressed and angry about the devastating impact of his bilateral upper-extremity impairment, and that he was unable to compete in the open labor market due to the effects of the psychiatric and orthopedic impairments.
The appeals board first noted that the psychiatric QME reported that the psychiatric injury was a consequence of the physical injury, and, therefore, LC 4660.1(c) applied and barred adding on impairment for the psychiatric disorder unless an exception applied. It noted that in Wilson v. State of CA Cal Fire (2019) 84 CCC 393, the appeals board en banc held that determining whether an injury is catastrophic per LC 4660.1(c)(2)(B) is limited to looking solely at the physical injury, without consideration for the psychiatric injury.
The board considered the factors for a catastrophic injury outlined in Wilson and found that although the applicant had seven shoulder surgeries, he did not require treatment for a serious or life-threatening condition. It also found that he could perform physical activities including walking, lifting, chores around the house and yard work. So, the board concluded that the record did not support a catastrophic injury.
Want to gain access to the definitive resource?
Sullivan on Comp is the most comprehensive California workers' compensation law
research and educational platform available.
The appeals board then held that the evidence could not support a finding that the applicant was permanently totally disabled. It found that none of the physicians reported that he was completely unable to return to work due to his industrial injury. It also declined to follow the analysis of the vocational experts, because they considered the applicant's psychological issues in determining his amenability to vocational rehabilitation. The applicant's permanent disability rating could not be increased for his compensable consequence psychiatric condition because his injury was not catastrophic, so the board concluded that his psychiatric condition was improperly considered in evaluating his amenability to vocational rehabilitation.
So, pursuant to Schaan, under LC 4660.1(c)(1) the bar against adding on psychiatric impairment, as well as impairment for sleep dysfunction and sexual dysfunction, also applies to vocational evidence. If a psychiatric injury is a compensable consequence of a physical injury, the psychiatric impairment may be considered in the analysis as to whether the applicant is amenable to vocational rehabilitation or unable to return to the open labor market only if an exception applies. Otherwise, any vocational evidence that considers a psychiatric impairment will not be considered substantial evidence.
For further discussion of LC 4660.1(c), see Sullivan on Comp Section 10.16 Permanent Disability –– Injury on or After Jan. 1, 2013. For further discussion regarding rebutting a scheduled rating using vocational evidence, see Sullivan on Comp Section 10.19 Rebutting Schedule Under Ogilvie.
When defendants seek to apportion an applicant's permanent disability, most often they look to...
Applied Materials v. WCAB: 6th District Court of Appeal Holds That Physician Misconduct Is Compensable, But Upholds Fitzpatrick
On June 1, 2021, the 6th District Court of Appeal certified for publication its decision in Applied...