Barthel: How Unhealthy Does a Catastrophic Damage Actually Have to Be?| Employees Compensation Information

By Donald R. Barthel

Friday, February 26, 2021 | 81 | 0 | min read

Do you remember the “bad old days”?

Donald R. Barthel

I’ve been in the industry for more than 30 years and I can understand why this question isn’t entirely clear. There have been so many periods in the history of California labor compensation that have been especially scary for employers.

The problematic period to which I am referring is shortly after the AMA guidelines were adopted with effect from January 1, 2005. Could it really have been a decade and a half?

Our new system for permanent disabilities should “promote consistency, uniformity and objectivity”. To our great disappointment, the Applicants’ Bar Association and many doctors found their way around this goal through the infamous Guzman judgment of the 6th DCA. But even before that, they got a little “creative” and found that many (most?) Applicants suffered from insomnia, sexual dysfunction and / or psychiatric disorders in addition to their traditional injuries.

Why? These were perfect additions to add to an award for permanent disability, especially given the AMA guides relied heavily on subjective complaints about sleep and sexual dysfunction. Worse, psychiatric problems weren’t even assessed against the AMA guides. Instead, California law has mandated that we use the slightly misapplied Global Assessment Function (GAF) when trying to measure persistent psychiatric disability.

When our legislators finally realized that “constancy, uniformity and objectivity” had gone the way of the dodo bird, they tried to remedy the situation. For injuries on or after January 1, 2013, Labor Code 4660.1 (c) (1) prohibited “an increase in impairment ratings for sleep, sexual dysfunction, or psychiatric disorders, or any combination thereof, for a compensable bodily harm”. While the reservation only applied to conditions that arose from “physical” injury, it was instrumental in preventing abuse.

Problem solved, right? Not correct.

Labor Code 4660.1 (c) (1) had some exceptions. In particular, this did not apply to “[a] catastrophic injury including but not limited to loss of a limb, paralysis, severe burn, or severe head injury. “That language is about as clear as mud. How much of a limb? What is the degree of paralysis required? How” is it a severe burn, and to what extent? And how heavy is a bump on the head?

While all of these are fair questions, the most problematic term in Labor Code 4660.1 (c) (1) is “catastrophic”.

Fortunately, the Workers’ Compensation Appeals Board in Wilson v State of CA Cal Fire (2019) issued an en-banc ruling. In determining whether an injury was truly “catastrophic”, the WCAB stated that we were dealing with the “nature of the injury” and not – as the defense suggested – with the “mechanism of the injury”.

This has a certain logic. After all, it is possible that an injury, which at first glance blushes, appears minor due to its mechanism, only to subsequently affect the patient’s condition.

Although the WCAB did not address the question of whether and to what extent a deterioration in earning capacity should be considered, it did provide a detailed list of factors the Trier of Fact must consider in order to determine whether an applicant is actually suffering from a “catastrophic.” Injury “suffers.

While this is not an exclusive list, judges should consider the following factors:

• Intensity / severity of treatment must heal / alleviate.
• End result with maximum medical improvement.
• Severity / impact of bodily harm on activities of daily living.
• Extent to which physical injuries compare to limb loss, paralysis, severe burns, or severe head injuries.
• Whether the physical injury is “incurable and progressive”.

Other factors can be considered. Furthermore, the judge does not have to find all five factors to find a “catastrophic” injury.

If you are not satisfied with the clarity of this decision, it will get worse. The WCAB vaguely states that the WCJ must take into account the “legislative intent” behind LC 4660.1 (c). I believe this means that judges should be conservative in using this test. However, compensation for California workers has never been a bastion of conservatism.

The WCAB provided a little more, albeit limited, insight. In Lund v Ryko Solutions Inc., the injured worker was subjected to complex decompression and fusion for two days. More than five years later, he continued to have a significant impact on his ADLs. He was still dependent on narcotics.

The WCAB ruled that this was “catastrophic” and allowed the inclusion of an entire person’s impairment with significant bodily harm in a psyche. It was no small matter. After Lund was given the option of adding Parkinson’s disease as well as the psychiatric and physical injuries per Athens Admin versus WCAB (Kite) instead of combining them, he was awarded a 100% permanent disability.

What is the result of all this bad news? If the applicant’s attorney is looking for a way to include sleep disorders, sexual dysfunction and / or psyche, you should be prepared for a fight.

Be ready to remind the parties, experts and judges that “consistency, uniformity and objectivity” is still in the Labor Code. Insist that you cannot simply bypass the legislative intent of LC 4660.1 (c) to support the argument that some of Wilson’s factors are not found. Prepare to fight the good fight over kite arguments that often fly in the face of the “consistency, uniformity, and objectivity” requirement.

The preparation – and much of it – will go a long way in combating claims to 100% permanent disability.

Donald R. Barthel is a founding partner of Bradford & Barthel LLP and B & B’s Rating & File Consultation Services. This entry from Bradford & Barthel’s blog is published with permission.