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California: Psychiatric Compensable Consequence as a New and Further Injury

October 14, 2014 (4 min read)

In Woodward v. Tri Corp Construction, 2014 Cal. Wrk. Comp. P.D. LEXIS —, the WCAB panel, affirming the WCJ, found good cause existed under Labor Code § 5410 to reopen the applicant’s 1/26/2011 Stipulated Award and to find that the applicant sustained a psychiatric injury as a compensable consequence of admitted 6/6/2009 orthopedic injuries.

Contrary to the defendant’s assertion, the applicant’s claim for psychiatric injury was not barred by the doctrine of res judicata or on the basis that the applicant knew of, but failed to allege, a psychiatric injury at the time the Stipulated Award was issued. The WCAB concluded that a psychiatric injury is not compensable until it causes either a disability or a need for medical treatment and is diagnosed using the terminology and criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders-Third Edition Revised.

Here, while there was some evidence in the record indicating that the applicant was aware of his psychiatric symptoms prior to the 1/26/2011 settlement and that the applicant received treatment for those symptoms and may have attributed symptoms, at least in part, to his 6/6/2009 specific orthopedic injury, none of the medical records existing prior to the settlement rose to the level of substantial medical evidence establishing industrial causation for a psychiatric injury pursuant to Labor Code § 3208.3(a). Furthermore, there was no substantial evidence of an industrial psychiatric injury until the 3/7/2012 report of the psychiatric agreed medical examiner Dr. Gordon Baumbacher, wherein Dr. Baumbacher diagnosed the applicant’s psychiatric condition “in accordance with the criteria of the Diagnostic and Statistical Manual of the American Psychiatric Association” (i.e., describing major depression, anxiety disorder and pain disorder) and found that the applicant’s orthopedic injury was the predominant cause. 

Commentary by Robert G. Rassp, Esq.:

This is an interesting case on the issue of whether or not an injured worker can file a Petition to Reopen for new and further disability under Labor Code Section 5410 or 5803 when the “new and further” was a psychiatric compensable consequence of the original orthopedic injury that had been well documented in the record at the time of the original Stipulated Award that included the orthopedic parts of body injured.  Defendant argued that since the injured worker knew about his psychiatric condition at the time of the original settlement, he is precluded under the doctrine of res judicata to assert a psychiatric claim as “new and further” since, essentially, the psychiatric component was not “new.”

The WCAB panel first indicates that res judicata does not apply since the WCAB never issued a decision of compensability of a psychiatric injury in this case at the time of the original settlement. Secondly, there was no evidence in existence at the time of the orthopedic settlement that the elements of Labor Code Section 3208.3(a) applied—that the injured worker suffered from a disability or obtained medical treatment (which he did) and there was a diagnosis under the American Psychiatric Association Diagnostic and Statistical Manual (DSM) that had been indicated by a physician.  This did not happen until after the Petition to Reopen had been filed. 

The case is also noteworthy by the WCAB panel’s statement that the WCJ erred in finding that the psychiatric condition was a stand-alone component of the June 6, 2009 specific injury. The panel pointed out that the psychiatric condition is a compensable consequential injury and relates back to the specific orthopedic injury that occurred on June 6, 2009.

Finally, the decision is noteworthy by the WCAB panel’s warning to applicant’s counsel not to cite an unpublished Court of Appeal decision in his Answer to the Petition for Reconsideration. Counsel on both sides should be careful about citing unpublished DCA opinions in any trial brief or communication with the WCAB.  While you may use the argument made by successful counsel in an unpublished decision, you should not cite the case as any authority. You can tell a judge or the WCAB panel that while you acknowledge that unpublished decisions are not binding on anyone other than the parties in that case, you are offering the DCA’s decision and why it should apply in your case.

Read the Woodward noteworthy panel decision.

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