California: High Velocity Eye Injury

A WCAB panel recently issued an interesting decision on the issue of high velocity eye injuries. The panel broadly interpreted the Labor Code § 4656(c)(3)(F) exception to the 104-week cap on temporary disability. Read our headnote below.

CA - NOTEWORTHY PANEL DECISIONS

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Andrew Glick, Applicant v. Knight-Swift Transportation Holdings, Inc., PSI, Defendant

W.C.A.B. No. ADJ11799924—WCAB Panel: Commissioner Dodd, Deputy Commissioner Schmitz, Commissioner Razo

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed November 2, 2022

Publication Status:  CAUTION:  This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)].  LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition: Reconsideration is granted, and the December 17, 2020 Findings, Award and Order is affirmed.

Temporary Disability—Exceptions to Two-Year Cap on Benefits—High-Velocity Eye Injuries—WCAB, after granting reconsideration, held that WCJ appropriately exercised his discretion to find that applicant sustained “high-velocity eye injury” when, while crossing street on 11/26/2018, he was struck and thrown nearly 10 feet by motor vehicle traveling approximately 30 mile per hour, entitling him to up to 240 weeks of temporary disability pursuant to Labor Code § 4656(c)(3)(F), when impact of accident to applicant’s body caused applicant to hit ground with sufficient force to fracture both his right and left temporal bones and subsequently develop vision problems as well as eye pain, and although defendant asserted that exception to 104-week cap on temporary disability benefits in Labor Code § 4656(c)(3)(F) pertains only to direct eye injury from object traveling at high velocity and did not apply here because applicant’s eyes were not directly struck by any object, WCAB relied on statute’s language and analysis in Glover v. ACCU Construction, 2009 Cal. Wrk. Comp. P.D. LEXIS 301 (Appeals Board noteworthy panel decision), to conclude that Labor Code § 4656(c)(3)(F) does not require specific impact of high-velocity object with eye rather than impact to person for application of exception to 104-week temporary disability cap, and that evidence of subsequent medical treatment to applicant’s eyes in this case, including surgical repair of eye muscles to correct eye alignment and vision, was sufficient to establish “eye injury” for purposes Labor Code § 4656(c)(3)(F). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2ssd § 7.02[2][b]; Rassp & Herlick, California Workers' Compensation Law, Ch. 6, § 6.12.]