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California: Psychiatric/Sleep Injury; Violent Act Not Found

June 24, 2022 (3 min read)

An interesting Board Panel Decision recently held that applicant’s injury, which occurred when he tried to stop an ice machine from falling, was not caused by a “violent act” so as to fall within the Labor Code § 4660.1(c)(2)(A) exception. As such, he was precluded under Labor Code § 4660.1(c)(1) from receiving a separate permanent disability rating for his psychiatric/sleep injury. The LexisNexis headnote reads:

Julian Sosa, Applicant v. Race Engineering, Inc., Insurance Company of the West, Defendants

W.C.A.B. No. ADJ11024874—WCAB Panel: Commissioners Sweeney, Snelling, Chair Zalewski

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed May 23, 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 However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp.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:  Applicant’s Petition for Reconsideration of the March 4, 2022 Findings and Award is denied.

Psychiatric Injury—Increased Awards of Permanent Disability—WCAB, denying reconsideration, affirmed WCJ’s findings that applicant suffered 10 percent permanent disability as result of 6/1/2017 industrial injury to his right hand, and that he was precluded under Labor Code § 4660.1(c)(1) from receiving separate permanent disability rating for his psychiatric/sleep injury, when WCAB determined that substantial medical evidence supported WCJ’s finding that applicant’s psychiatric/sleep condition was compensable consequence of physical injury, not directly caused by 6/1/2017 incident, thereby precluding increased permanent disability rating, and that applicant’s injury, which occurred when he tried to stop ice machine from falling, was not caused by “violent act” so as to fall within Labor Code § 4660.1(c)(2)(A) exception to bar against increased permanent disability rating for compensable consequence psychiatric injuries, because incident experienced by applicant did not involve extreme or intense force nor could it be characterized as vehemently or passionately threatening, and absent legislative history indicating that 2019 amendment to Labor Code § 4660.1(c)(1), stating that impairment rating for sleep dysfunction, sexual dysfunction, or psychiatric disorder “shall not increase,” was more than non-substantive change or intended to reinstate compensability for permanent impairment for these conditions, WCAB rejected applicant’s assertion that amendment was intended to preclude application of 1.4 adjustment in Labor Code § 4660.1(b), but otherwise provide compensability for permanent impairment resulting from these conditions. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.02[3][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][b][i], [ii], 7.06[6], Ch. 10, § 10.06[3][a], [b][i]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 5, 6, 9.]

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