As the reform provisions of SB863 kick into high gear, parties are grappling with a variety of challenges. One of the more complex and intriguing issues for practitioners is identifying and processing injuries that are compensable consequences of the original industrial injury.
This is an extremely critical issue. Compensable consequence injuries usually generate requests for medical treatment. Yet, the authorizing authority often does not receive adequate information regarding the industrial nature of the claim, thus delaying provision of medical treatment… sometimes, with disastrous consequences.
In addition, SB863 added some unique rules that apply only to certain compensable consequences. Therefore, it is imperative that litigants understand the compensable consequence concept so they can educate their clients, the physicians and the adjusting agents accordingly.
I. Definition of Compensable Consequence
Industrial injuries for both specific injuries and cumulative traumas are defined in Lab. Code § 3208.1 [LC 3208.1] as follows:
An injury may be either:
(a) "specific," occurring as the result of one incident or exposure which causes disability or need for medical treatment; or
(b) "cumulative," occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment.
Unfortunately, the Labor Code does not provide a definition for compensable consequences. So we must look to case law for a description. In a recent Noteworthy Panel Decision (NPD), Bates v. Serologicals Corp, 2013 Cal. Wrk. Comp. P.D. LEXIS 194 [2013 Cal. Wrk. Comp. P.D. LEXIS 194], the WCAB explained the doctrine of compensable consequences as follows:
“California Workers’ Compensation law has long followed a principle commonly known as the “compensable consequences” doctrine. Under this doctrine, where a subsequent injury is the direct and natural consequence of an original industrial injury, the subsequent injury is considered to relate back to the original injury and it generally is not treated as a new and independent injury.” (Bates, supra, emphasis added.)
Mr. Bates worked as a laboratory technician, which required extensive and varied use of his upper extremities. He suffered an admitted industrial injury in the form of carpal tunnel cumulative trauma to his right wrist. Thereafter, although he returned to his usual and customary work, he did not have full use of his right arm. One of Mr. Bates usual job duties was to push a cart of laboratory equipment up a slanted platform. This relatively simple task with two good arms became a next to impossible one to execute with only one arm. On July 14, 2004, while trying to push the cart up the platform using only his hips and his left arm, Mr. Bates’ left knee buckled underneath him, causing injury to his left lower extremity.
Mr. Bates settled his underlying claims for both the right arm and the left knee, leaving the insurance carriers to grapple over how to handle the left knee compensable consequence injury with regard to their respective liabilities and rights of contribution.
The WCAB examined the facts and the evidence in the case and explained that at face value, the injury to the right upper extremity and the injury to the left lower extremity may seem to be totally unrelated to each other. However, it was also possible that the left knee injury, rather than being a new specific injury, may be a compensable consequence of the original right arm cumulative trauma injury. The WCAB made it clear that the determining factor was whether or not the original industrial injury to the right arm was a contributing cause of the injury to the left knee.
The WCAB concluded that this was an issue that needed to be based on a medical determination. Although two physicians in this case agreed that there was no connection between the two injuries, neither provided an analysis for their conclusion. Therefore, neither report constituted substantial evidence. (See Escobedo v. Marshalls, (2005) 70 Cal Comp Cases 604 [70 CCC 604] (WCAB en banc) as to what factors need to be included in medical evidence in order for it to be considered substantial evidence.) The matter was returned to the trial level to allow the parties to develop the record on this issue.
II. Need for Physician’s Explanation of Causation of Injury
What’s striking about the Bates finding is not that the WCAB spotted the compensable consequence issue and ordered the record be developed. It is that physicians failed to provide an adequate causation of injury analysis for the compensable consequence injury. Unfortunately, this is not uncommon, even though this is one of the most important tasks an evaluating doctor must perform.
Provision of and authorization for medical treatment is predicated on the existence of an industrial injury. If medical treatment is requested, but the connection to an industrial cause is not identified and explained by the physician, this could lead to a serious delay of medical treatment while the authorizing party attempts to determine an industrial link.
Courts have placed a duty on the parties to inform physicians on the use of appropriate legal standards. In the WCAB en banc decision of Blackledge v. Bank of America, (2010) 75 Cal. Comp. Cases 613 [75 CCC 613], the commissioners explained that a doctor may not “be able to produce a legally proper report without some assistance from the parties. (See Gay v. Workers’ Comp. Appeals Bd. (1979) 96 Cal.App.3d 555, 563-564 [158 Cal. Rptr. 137] [44 Cal.Comp.Cases 817, 822] (‘We do not comprehend how the parties can expect any physician to properly report in workers’ compensation matters unless he is advised of the controlling legal principles. … [H]ere, the failure of Dr. Naftulin to [report] in terms of the proper legal standard is not actually his fault but that of the parties.’).)” Blackledge, supra, footnote 10.
The legal doctrine of compensable consequences is often misunderstood and misapplied, and should be studied by practitioners so that they can adequately explain the concept to physicians to ensure the expeditious provision of medical treatment for industrial injuries as mandated by the California Constitution, Article 14, Section 4.
III. Types of Compensable Consequences
The WCAB panel in Bates, supra, provided practitioners with a plethora of examples of injuries deemed to be compensable consequences. Those examples, along with more recent cases, are listed below.
A. Non-Industrial Car Accident
In the California Supreme Court case of Southern Cal Rapid Transit District v. WCAB, (Weitzman), (1979) 44 Cal Comp Cases 107 [44 CCC 107], the injured worker was involved in a car accident after delivering a “return to work” medical release to his employer. All injuries as a result of the accident were deemed to be compensable consequences of the original industrial back injury.
B. Narcotic Addiction
In the case of Ballard v. WCAB, (1971) 36 Cal. Comp. Cases 34 [36 CCC 34], the California Supreme Court in bank annulled a WCAB decision denying treatment for Ms. Ballard’s narcotic addiction resulting from her excessive use of pain medication to relieve the pain of her industrial back injury. The Court stated that the question for determination was one of causation of addiction. If the industrial injury was a component in that causation, then the narcotic addiction would be considered a compensable consequence of the industrial injury.
C. Fall From a Ladder
The 2nd DCA in the case of Beaty v. WCAB, (1978) 43 Cal Comp Cases 444 [43 CCC 444], dealt with a police officer who had an industrially injured shoulder. While standing on a ladder, his shoulder caused him pain and was in such a weakened state, that it caused him to lose his balance and fall. The court held that in order to determine whether the injury from the fall was a compensable consequence, there must be medical evidence to substantiate that the underlying industrial injury was a contributing factor in the subsequent injury. (Beaty v. WCAB, (1978) 43 Cal Comp Cases 444)
D. On Route to Obtain Medical Treatment
One of the most common types of compensable consequences are those that occur while on the way to obtain medical treatment.
In the writ denied case of Haitbrink Asphalt Paving, Inc. v. WCAB, (Acevedo), (2013) 78 Cal. Comp. Cases 478 [78 CCC 478], a paralysis injury was deemed to be a compensable consequence of Mr. Acevedo’s low back industrial injury. The 4th DCA agreed with the WCAB’s conclusion that:
“…(A)pplicant met his burden to show that he was on his way to the doctor's office at the time of the accident, and thus, the trip arose out of and in the course of employment as a compensable consequence.”
(See also Laines v. WCAB, (1975) 40 Cal Comp Cases 365 [40 CCC 365], and Rodgers v. WCAB, (1985) 50 Cal Comp Cases 299 [50 CCC 299].)
E. Using a Power Saw At Home
Perhaps the most famous compensable consequence case was that of SCIF v. IAC, (Wallin), (1959) 24 Cal Comp Cases 302 [24 CCC 302]. In that case, a carpenter who had sustained vision loss at work was using a power saw for a personal project at home. Because of his impaired vision, he accidently amputated his finger, which was deemed a compensable consequence of his original industrial eye injury.
F. LC 3208.3 applies to Psych Compensable Consequences:
In the case of Lockheed Martin v. WCAB (McCullough), (2002) 67 Cal Comp Cases 245 [67 CCC 245], the 1st DCA overturned the WCJ’s determination (affirmed by the WCAB) and held that psychiatric compensable consequences are subject to the limitations set forth in LC 3208.3, just as direct psychiatric injuries would be.
G. Sexual Impairment
In the panel decision of Grom v. Shasta Wood Products, SCIF, (2004) 69 Cal Comp Cases 1567 [69 CCC 1567], the injured worker suffered from a sexual impairment due to opioid use, as a result of his industrial back injury. The WCAB affirmed the WCJ’s award of medical treatment in the form of testosterone cream to treat Mr. Grom for his sexual impairment, which was a compensable consequence of the underlying industrial injury.
H. Sleep Disorder
In both of the cases listed below, the injured worker was awarded treatment for sleep apnea, which physicians had determined was caused by weight gain due to inactivity caused by the industrial back injury and therefore both sleep disorders were considered compensable consequences:
· City of Los Altos v. WCAB (Verna) (2012) 77 Cal. Comp. Cases 640 [77 CCC 640]
· Miller v. California State University, (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 589 [2012 Cal. Wrk. Comp. P.D LEXIS 589]
IV. SB863 Changes for Compensable Consequence Injuries
Most of the compensable consequence cases mentioned above and set forth in the Bates, supra, panel decision, dealt primarily with provision of medical treatment for an injury deemed to be a compensable consequence. Depending on the circumstances, the level of ultimate permanent disability may also be increased due to a compensable consequence injury. However, pursuant to SB863, for all dates of injuries after January 1, 2013, only certain compensable consequence injuries will be able to increase a worker’s whole person impairment (WPI).
NEW Labor Code § 4660.1(c)(1) [LC 4660.1] 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 injured employee to obtain treatment for sleep dysfunction, sexual dysfunction or psychiatric disorder, if any, that are a consequence of an industrial injury.”
Therefore the last three compensable consequence injuries listed above (i.e., sleep, sex and psych disorders) will no longer be entitled to increase a WPI rating. However, if those same types of disorders are either specific industrial injuries or industrial cumulative traumas, they may still be eligible for the WPI increase.
It should also be noted that medical treatment for these injuries is specifically not barred by the new statute.
As stated above, the medical evidence will be the key to this determination. It is extremely important that physicians correctly analyze the concepts and understand the nuances of LC 4660.1(c)(1). Set forth below are questions that should be addressed in these circumstances:
· Has the medical evaluator correctly explained the mechanism of injury?
· Has the medical evaluator identified an injury subsequent to the original industrial injury as a compensable consequence?
· If so, has the medical evaluator provided a thorough analysis, as well as a conclusion, of causation of the compensable consequence injury?
· If WPI increase is requested for the compensable consequence impairment caused by the industrial injury, is the injury subject to the new provisions of SB863?
· If the compensable consequence is psychiatric in nature, does it qualify for one of the exceptions to the WPI increase bar per LC 4660.1(c)(2)?
· If an argument is being made that a psych compensable consequence has resulted from a “catastrophic” industrial injury per LC 4660.1(c)(2)(B), have any of the physicians made a determination that the underlying physical industrial injury constitutes a “catastrophic” one?
· If the WPI increase is appropriate, has the medical evaluator provided a thorough analysis, as well as a conclusion, for causation of disability?
Practitioners should take special care when dealing with a case encompassing compensable consequence injuries. All compensable consequence injuries should be evaluated by the physician and the physician should be educated as to how to properly analyze these issues, especially after the changes brought about by SB863.
© Copyright 2013 LexisNexis. All rights reserved. This article will appear in an upcoming issue of California WCAB Noteworthy Panel Decisions Reporter.
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