Workers' Compensation

California: WCAB En Banc Provides Analytical Framework for Determining Catastrophic Injury Under Labor Code Section 4660.1(c)(2)(B)

In the six years since the legislature enacted Labor Code section 4660.1(c)(2)(B), practitioners have wrestled with the meaning of “catastrophic injury” as used in the section. The statute was in response to a widely-held belief that lower permanent disability ratings as a result of the 2004 legislative reforms had given rise to increased impairment (referred to as “add-ons”) even for questionable claims, such as psychological disorders. Legislative history informs us that the purpose of the section was to limit additional impairment for psychiatric injuries to those cases involving a “catastrophic injury.” But that same history offers no insight as to what constitutes a “catastrophic injury.” The statute, itself, does not define a “catastrophic injury.” The recent en banc decision, Wilson v. State of CA CAL Fire (May 10, 2019) 2019 Cal. Wrk. Comp. LEXIS 29, provides that long-awaited clarification.

Don’t expect to find an explicit definition of “catastrophic injury” in the Board’s meticulous and erudite decision. What you will find, however, is the road-map for making that determination. Foremost, the decision tells us that the focus of section 4660.1(c)(2)(B) is the nature of the injury, which will vary, depending on the circumstances of each case. The determination requires a “fact-driven” inquiry. Next, even though the section identifies the loss of a limb, paralysis, a severe burn or a severe head injury as examples of “catastrophic injuries”, there may be a whole range of circumstances beyond those four statutorily-specified injuries that can be characterized as “catastrophic”.

It then provides a list of factors that may be considered in making the ultimate determination. Those factors are: (1) The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve from the effects of the injury; (2) The ultimate outcome when the employee’s physical injury is permanent and stationary; (3) The severity of the physical injury and its impact on the employee’s ability to perform activities of daily living; (4) Whether the physical injury is closely analogous to one of those injuries specified in the statute: loss of a limb, paralysis, severe burn, or severe head injury; and (5) If the physical injury is an incurable and progressive disease. Of significance, the Board notes that its list of five factors is not exhaustive, and other relevant factors may be considered. Further, it states that not all of these factors may be relevant in every case, and the injured employee is not required to demonstrate that all of the factors apply in order to prove a “catastrophic injury”.

It is expected that this analytical framework will become as common-place and helpful in determining whether the nature of an injury can be characterized as “catastrophic” as the Rolda analysis is for determining causation of a claimed psychiatric injury. (See Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241 (Appeals Bd. en banc).) Practitioners seeking to demonstrate the catastrophic nature of a compensable psychiatric injury will be well-served by incorporating the Wilson framework in case work-up and presentation.

Practitioners should check the subsequent history of the case before citing to it.

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