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The “Catastrophic Injury Exception” Is Expanded, Yet Again.

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The Appeals Board directed the focus to the nature of the injury itself, instead of the results from the injury

Since the passage of S.B. 863, the “catastrophic injury exception” found in LC § 4660.1(c)(2)(B) that bans additional PD for psychiatric injury (arising from orthopedic claims) has been a moving target. Why? Because of the little guidance about the definition of a “catastrophic injury” which is something that the en banc decision of Wilson v. State of CA Cal. Fire (2019) Cal. Wrk. Comp. LEXIS 29 aims to offer.

In Wilson, a firefighter applicant suffered severe physical injuries while fighting the Lompac May 13, 2014 wildfire. This led to a 2-week hospitalization. The psychology QME provided impairment after diagnosing Applicant with industrial PTSD and severe major depressive disorder as a result of his physical injuries.

At trial, Defendant argued that the psychiatric PD was barred under LC § 4660.1(c)(1) and the WCJ agreed. But the Appeals Board disagreed, holding that the physical injuries were, in fact, “catastrophic” under LC § 4660.1(c)(2)(B) and that the focus should be on the injury itself, requiring a fact-driven inquiry beyond the loss of a limb, paralysis, a severe burn or a severe head injuries.

The Appeals Board directed the focus to the nature of the injury itself, instead of the results from the injury, which include factors to consider outside of the statute, such as: 1) the intensity and seriousness of treatment for the injury; 2) the ultimate outcome when the employee’s physical injury is P&S; 3) the severity of the physical injury and its impact on the workers’ ADL’s; 4) whether the physical injury is closely analogous to one of the statutorily enumerated injuries; and 5) if the physical injury is an incurable and progressive disease. This list is not exhaustive, the Applicant doesn’t need to satisfy every element be met before the exception apply and Judges are free to consider other factors.

The Takeaway

Though Wilson provides some clarity on the “catastrophic injury” exception, the multiple factors and discretion afforded to the trier of fact is unlikely to reduce litigation in the long run.

By: Warren Hedstrom, Esq.- Gilson Daub’s West LA Office

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