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California: Direct Injuries vs. Compensable Consequences

March 29, 2017 (7 min read)

The Importance of Knowing the Difference Between Direct Injuries and Compensable Consequences

For dates of injury prior to 1/1/2013, injured workers were entitled to full workers’ compensation benefits for injuries to all body parts, regardless of whether the injury was a result of a “direct industrial injury” or a “compensable consequence of a direct industrial injury.” (See Labor Code § 4660.)

I. No Whole Person Impairment Increase for Sleep, Sex or Psych Injuries

That policy has been tweaked a bit. Now, for dates of injury on or after 1/1/2013, injured workers are still entitled to all workers’ compensation benefits for injuries to all body parts resulting from direct industrial injuries. However, injured workers’ are no longer entitled to an increase in whole person impairment (WPI) ratings for any sleep dysfunction, sexual dysfunction or psychiatric disorder deemed to be a compensable consequence of a direct industrial injury. (See Labor Code § 4660.1)

Labor Code § 4660.1(c)(1) provides:

…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 IW to obtain treatment for sleep dysfunction, sexual dysfunction or psychiatric disorder, if any, that are a consequence of an industrial injury. (Emphasis added.)

It should be noted that Labor Code § 4660.1(c)(2) provides exceptions for certain psychiatric compensable consequences when the applicant is the victim of a “violent act” or a “catastrophic injury.” (For a thorough explanation of what constitutes a “violent act,” see the WCAB panel decision of Larsen v. Securitas Security Services, 2016 Cal. Wrk. Comp. P.D. LEXIS 237, 81 Cal. Comp. Cases 770.)


II. Distinction Between a Direct Injury and a Compensable Consequence

In applying this relatively new Labor Code § 4660.1, it is important for practitioners to understand the distinction between direct industrial injuries and a compensable consequence of a direct industrial injury.

For example, if Betty, the bank teller, witnessed her supervisor being shot to death while trying to take down an armed robber, Betty most likely would have direct injury to her psyche, as a result of this industrial incident. Therefore Betty would NOT be barred from claiming an increase in WPI per Labor Code § 4660.1, since she has a direct psyche injury and NOT a compensable consequence of a physical injury.

However, even with a direct psyche injury, Betty would still be required to meet the burden of proof threshold for psychiatric injuries per Labor Code § 3208.3. (See Rolda v. Pitney Bowes (2001) 66 Cal. Comp. Cases 241 (Appeals Board en banc decision).)

III. Query re Compensable Consequence of Psyche Industrial Injuries

The plain language of the statute, Labor Code § 4660.1, states that there shall be no WPI increase for compensable consequences of physical injuries. However, the statute is silent with regard to compensable consequences of psychiatric industrial injuries.

Consider the hypothetical of Charlie, a chain saw operator. One morning, while Charlie is operating his chain saw, a 6.7 earthquake strikes the town. Charlie loses control of his machine and accidentally amputates the entire right arm of a co-worker. It is possible that, this industrial accident might directly cause injury to Charlie’s psyche. As discussed above, since Charlie’s injury is a direct psychiatric injury and not a compensable consequence, Charlie might be entitled to an increase in WPI for this direct psychiatric injury. (Again, Charlie would still be still be required to meet the burden of proof threshold for psychiatric injuries per Labor Code § 3208.3.)

Taking this a step further, what would the result be, if, as a consequence of this compensable direct psychiatric injury, Charlie develops some sort of sexual and sleep dysfunction?

Labor Code § 4660.1(c)(1) bars increases to WPI for sleep, sex and psych injuries “arising out of a compensable physical injury.” However, again, the statute is silent as to sleep, sex and psychiatric injuries arising out of a compensable psychiatric injury. Since the sleep and sexual dysfunction are a result of the compensable psychiatric injury and NOT a compensable consequence of any physical injury, an argument could be made that, by applying a strict construction of the statutory language of Labor Code § 4660.1(c)(1), Charlie would not be barred from an increase in WPI for his sexual and sleep dysfunction.

IV. Sexual Dysfunction – Montenegro

The WCAB in the writ denied case of City of Los Angeles v. Workers’ Comp. Appeals Bd. (Montenegro) (2016) 81 Cal. Comp. Cases 611 (writ denied), provided a rather liberal interpretation of Labor Code § 4660.1(c)(1).

Mr. Montenegro was a firefighter for the City of Los Angeles, who contracted prostate cancer, which the parties stipulated was an industrial cumulative trauma injury ending on 8/11/2014. (The parties relied on the industrial cancer presumption provided for in Labor Code § 3212.1, as the basis for this stipulation.)

The WCJ determined that Mr. Montenegro’s erectile dysfunction was also an industrial injury, as a direct result of his industrial injury of prostate cancer. Accordingly, the WCJ awarded an increase in WPI to reflect the level of sexual dysfunction.

Defendants filed a Petition for Reconsideration objecting to the “sexual dysfunction add-on” as being contrary to the bar for increase of WPI under Labor Code § 4660.1. Defendants argued that Mr. Montenegro’s erectile dysfunction was due to complications from medical treatment for his industrial injury. Therefore defendants explained, the erectile dysfunction is a compensable consequence of the physical injury and NOT a direct injury.

To support their position, defendants relied on the following statement from the report of the AME, Dr. Ernest Agatstein, dated 2/20/2015:

The fact that the patient is lacking a prostate gland and seminal vesicle which has been removed…[s]ubjectively, the patient is complaining of mild erectile dysfunction, difficulty in achieving and maintaining an erection. Erectile dysfunction is a common risk factor that occurs as a sequela of a radical prostatectomy. The cavernosal nerves that travel along the prostate gland can be injured. The operating surgeon, Dr. Khoddami, specifically stated in his operative report that he sacrificed the left cavernosal nerve due to scarring on that side. The erectile dysfunction is a direct result and sequela of the performance of the radical prostatectomy to alleviate this man's prostate cancer.

The WCJ explained that Mr. Montenegro’s erectile dysfunction was a direct injury as follows:

The Defendant contends that Applicant’s sexual dysfunction resulted from medical treatment for the underlying industrial injury to the prostate; thus the outcome, the lack of a prostate, is nothing more than a “compensable consequence.” However, an injury to the prostate, in terms of sexual dysfunction, cannot be considered compensatory by the very definition of the word. The prostate is described as part of the internal organs of the male reproductive system, also called accessory organs. The prostate gland is a walnut-sized structure that is located below the urinary bladder in front of the rectum. The prostate gland contributes additional fluid to the ejaculate. Prostate fluids also help to nourish the sperm. The urethra, which carries the ejaculate to be expelled during orgasm, runs through the center of the prostate gland. (Emphasis added) It is for those reasons that the Defendant's contention must fail.

The WCAB affirmed the WCJ’s conclusion and explained that this was not the type of “questionable claim” the legislature intended to eliminate by enacting Labor Code § 4660.1(c)(1).

V. Medical Treatment Mandatory – What About Temporary Disability?

Practitioners should be mindful of the fact that although a WPI increase is not permitted for sex, sleep and psych compensable consequences, Labor Code § 4660.1(c)(1) specifically states that, “Nothing in this section shall limit the ability of an injured worker to obtain treatment for sleep dysfunction, sexual dysfunction or psychiatric disorder, if any, that are a consequence of an industrial injury.” (See Hernandez v. Fremont Bank, 2015 Cal. Wrk. Comp. P.D. LEXIS 470.)

Although no permanent disability may be awarded for these compensable consequences, the injured worker is still entitled to medical treatment for these injuries on an industrial basis.

PRACTICE NOTE: Therefore, it is important to include these body parts if the parties reach a settlement through a Stipulation with a Request for Award. This will enable the injured worker to secure medical treatment for these body parts, even though he or she is not entitled to an increase in WPI.

QUERY: Although Labor Code § 4660.1(c)(1) is clear that parties are entitled to medical treatment in these cases where WPI increases are denied However, whether the injured workers are entitled to temporary disability has not yet been decided by the courts. The statute only mandates that WPI increases are barred and medical is mandated, but it is silent as to temporary disability. We will have to wait for future case law to clarify that issue.

VI. Conclusion

Even though over three years have passed since Labor Code § 4660.1(c)(1) was enacted, there is a relative dearth of case law interpreting some of the more elusive sections of this statute. Practitioners should carefully study the wording of the statute, as well as case law distinguishing direct injuries from compensable consequence injuries to ensure they are providing the most accurate and up to date information to the trier of fact and getting the best result for their client.

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