En Banc Decision Opinion and Order Denying Petition for Reconsideration of Wilson v. State Cal Fire
On May 16, 2019, we issued a GMK Alert with regard to the En Banc decision in the matter of Wilson v. State Cal Fire, 2019 Cal. Wrk. Comp. LEXIS 29 determining the meaning of catastrophic injuries per Labor Code Section 4660.1(c)(2)(B).
On July 15, 2019, the Workers’ Compensation Appeals Board (WCAB) En Banc issued its Opinion and Order Denying Petition for Reconsideration filed by the defendant.
The defendant argued that the five factors outlined by the Opinion are not authorized by Labor Code Section 4660.1(c)(2)(B) or legislative history, and that the Appeals Board exceeded its authority by promulgating these five factors. In addition, the defendant argued that the phrase “catastrophic injury” in Section 4660.1(c)(2)(B) refers to the mechanism of injury and the condition immediately after the injury occurs, and not to the end result of the injury.
May 10, 2019 Opinion
In the Wilson opinion, the WCAB interpreted the meaning of catastrophic injuries per Labor Code Section 4660.1(c)(2)(B) by stating that the determination must be focused on the nature of the injury and is a fact-driven inquiry for the Workers’ Compensation Judge to decide.
The board listed several factors that may be considered by a WCJ in determining whether an injury is catastrophic including, but not limited to:
The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve from the effects of the injury.
The ultimate outcome when the employee's physical injury is permanent and stationary.
The severity of the physical injury and its impact on the employee's ability to perform activities of daily living.
Whether the physical injury is closely analogous to one of the injuries specified in the statute: loss of a limb, paralysis, severe burn, or severe head injury.
If the physical injury is an incurable and progressive disease.
Decision After Reconsideration
The Board rejected the argument that the phrase “catastrophic injury” refers to the mechanism of injury per its original decision. With regard to the argument that a catastrophic injury refers to the condition immediately after the injury occurs, the Board did not find the argument to be supported by the statute’s plain language as Section 4660.1(c)(2)(B) does not contain temporal restrictions on its application, and there is nothing in the statute to indicate that whether an injury is catastrophic must be determined at a specific time, including immediately after the injury occurs.
The Board further stated that “An injured worker could sustain an injury to a limb that does not immediately result in the limb’s amputation (i.e., loss of a limb) until a period of time after the initial injury.”
With regard to the argument that the factors listed in the Opinion are not supported by legislative history and the Appeals Board exceeded its authority by outlining factors the trier of fact may consider, the Board stated that the factors provide an analytical framework to assist the trier of fact, however, they are not required to implement or consider the suggested factors.
WHAT THIS MEANS FOR YOU
The WCAB’s interpretation of a “catastrophic injury” remains intact, and is focused on the nature of the injury. It is a fact-driven inquiry for the Workers’ Compensation Judge to decide. A Judge may apply the factors listed above as an analytical framework however the list is not exhaustive, nor is the Judge required to consider the factors.
We anticipate that there will be a significant uptick in claims by applicants and their attorneys that injuries that have not heretofore been considered “catastrophic” will be asserted as such to secure additional financial compensation based upon increases in impairment ratings for psychiatric disorders.
Amanda Rocha, Esq.
Central Coast Office
Goldman, Magdalin & Krikes, LLP