Psychiatric Injury

Madson v. Cavaletto Ranches (BPD) 45 CWCR 65

The applicant, a truck driver, was involved in an industrial motor vehicle accident when another vehicle turned onto the highway without using a dedicated merge lane, causing applicant to swerve to avoid the collision. The truck rolled over, pinning the applicant inside the cab upside down. The applicant could not be removed from the cab for 35 to 40 minutes during which time the claustrophobic applicant could take only shallow breaths. The applicant testified at trial that he was afraid the truck would catch fire because it had two full tanks of fuel and the engine was still running.

Applicant was freed from the wreckage by the “jaws of life” and described the event as “horrific.” Defendants admitted injury to applicant’s head, neck, shoulders and nervous system. Applicant testified he did not think he was hurt until he learned of the fracture of his two vertebrae and that he could have died had the fracture gone further. Applicant testified he developed emotional symptoms slowly after the injury.

The panel Qualified Medical Evaluator in psychiatry diagnosed the applicant with post-traumatic stress disorder as a direct result of the incident that threatened applicant with death or serious injury. The WCJ did not award the applicant psychiatric disability finding that the motor vehicle accident was not a violent act perpetrated by a human being. The WCJ had limited the definition of violent act to a volitional act set in motion by human being.

The panel, citing the case of Larson v. Securitas Security Service (44 CWCR 111), rejected a criminal or quasi criminal definition of violent act and defined the term for purposes of section 4660.1 as an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening. Applicant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board reversed the Workers’ Compensation Judge and found the psychiatric injury compensable.

The WCAB, citing the case of City of Los Angeles v. WCAB (81 C.C.C. 611) (W/D), stated that the section does not preclude increased impairment ratings when the psyche injury arises directly from the events of employment. The applicant’s psychiatric disorder was not directly from the compensable physical injury. Therefore, the preclusion of §4660.1(c) did not apply to applicant’s psyche injury.

In this case, the Board observed that the vehicle accident resulted in a fracture in the applicant’s neck and considerably threatened his life, and trapped him in an overturned tractor trailer for 35 to 40 minutes, requiring the “jaws of life” to extract him from the wreckage Such circumstances, in the opinion of the Board, could be characterized as “resulting from extreme or intense force and as vehemently threatening.”

Thus, the mechanism of the injury constituted a “violent act” within the definition of 3208.3 (b), entitling the applicant to compensable disability as an exception to § 4660.1 (c).

The WCAB indicated that Labor Code §4660.1(c) provides there shall be no increase in impairment rating for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury. The section goes on to state that an increased impairment rating for a psychiatric disorder shall not be subject to the limitation if the applicant was a victim of a violent act or direct exposure to a significant violent act within the meaning of §3208.3 or a catastrophic injury, including but not limited to loss of limb, paralysis, severe burn, or severe head injury.

The panel concluded that, based on the report of the Qualified Medical Evaluator, the traumatic stress of the motor vehicle accident resulted in the post-traumatic stress disorder and was itself the industrial injury. The WCAB also agreed with applicant that even if the psych injury were found to have arisen from his physical injuries, it would be compensable because the mechanism of injury itself was a violent act.

Thus, the mechanism of the injury constituted a “violent act” within the definition of §3208.3 (b), entitling the applicant to compensable disability as an exception to §4660.1 (c). The WCAB then rated applicant’s overall disability at 60%. The WCAB rescinded the WCJ’s award and awarded the applicant 60% permanent disability.

Torres v. Greenbrae (BPD) (45 CWCR 152):

The applicant was employed as a tree trimmer, fell from a tree, hit his head on the tree trunk and lost consciousness. The applicant was transported to hospital and diagnosed with a closed head injury, loss of consciousness, and a cervical strain.

The applicant complained of dizziness, nausea, problems standing, severe pain in the head, neck pain, confusion when driving. The applicant complained of nightmares about falling generally and falling out of a tree.

The parties stipulated that he sustained physical injuries to his head, neck, back, and ears.

The applicant was seen by a psychiatrist who diagnosed a mild traumatic brain injury and concluded the applicant had sustained a psychiatric injury secondary to the brain injury. He signed the applicant with a 14% whole person impairment. The applicant was also seen by Agreed Medical Evaluator in neurology: found post traumatic headaches, cognitive, vestibular, neck impairments.

The matter proceeded to trial and the parties stipulated applicant sustained a psychiatric injury, disagreed on whether there was compensable permanent disability.

The WCJ determine the applicant sustained an industrial injury to his head, neck, back, hears, and psyche, with resulting cognitive difficulties, but also determined that the psychiatric permanent disability was not compensable because applicant had not incurred a catastrophic injury. According to the record, LC §4660.1 was raised at trial, but the violent act exception to the prohibition of psychiatric compensable consequence permanent disability was not specifically addressed.

Applicant filed a petition for reconsideration.

The WCAB concluded that applicant psychiatric injury arose directly from the event that caused this injury. The panel considered the applicant’s nightmares as suggestive that applicant sustained a direct psychiatric injury and noted that the psychiatrist had not addressed whether applicant’s psychiatric injury was direct or compensable consequence of the physical injury.

Labor Code §4660.1(c)(1) denies an increase in permanent disability for psychiatric, sleep and sexual dysfunction that arose from a compensable physical injury, but does not bar psychiatric impairment that directly arises from the injury.

The panel indicated there was conflicting evidence on whether the psychiatric injury was a direct result of the fall and thus required medical-legal clarification for determination on this issue.

The panel concluded that, because applicant raised Labor Code §4660.1 at trial, the issue of violent act exception to the bar of increase ratings for psychiatric disability was preserved even though is not specifically addressed.

The panel next determined that applicant’s injury fell within an exception. Pursuant to Labor Code §4660.1(c)(2)(A), even where the psychiatric injury as a compensable consequence of the physical injury, is compensable if it resulted from being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3.

To fall under the violent act exception, the act pursuant to the cases of Larsen (44 CWCR 111) and Madson (45 CWCR 65) must be (1) be characterized by strong physical force, (2) characterized by extreme or intense force, or (3) vehemently or passionately threatening.

The panel rejected defendant’s contention that the term victim is used in the Labor Code Section, showed a legislative intent to limit the section to person’s harm by criminal acts. Panel noted the word victim was not commonly so narrowly construed.  Persons are victims of natural disasters, diseases and political oppression which are not criminal acts.

Further, the Legislature had not expressly limited the violent act exception to criminal acts, as it had in Labor Code §4650.5, which conditions its application to situations where the injury as a result of a criminal act of violence against an employee.

The panel concluded that under the plain language of the Statute applicant’s psychiatric injury was compensable. The Board stated, applicant’s injury in a fall from a height, striking his head in a tree trunk, was the result of an extreme or intense force and was vehemently threatening, thus fitting two of the three violent act categories.

Because the injury was compensable under the violent act exception, the question of whether was a catastrophic injury question was moot.

The psychiatrist had added sleep and sexual dysfunction pursuant to Almaraz/Guzman II.

The WCAB stated that sleep and sexual dysfunction ratings were add-ons that §4660.1 specifically excludes and that the violent act exception only applies to psychiatric add-ons.

Labor Code §4660.1 did not overrule Almaraz/Guzman II decision in the rules must be read together. The Legislature, though §4660.1, undertook to eliminate sleep and sexual dysfunction add-on, to allow such add-ons under Almaraz/Guzman II would circumvent the intent of Labor Code §4660.1, which was to promote uniformity and decrease the number of compensable consequence psychiatric, sleep and sexual dysfunction claims, which, in the Legislature’s view constituted a fraud risk.

Moreover, the panel stated, sleep and sexual dysfunction are incorporated into the activities of daily living calculation at table 1-2 of the AMA guides. In short, the sleep and sex disorder at-ions under Almaraz/Guzman II in this case would not only appear to frustrate the intent of LC 4660.1 but would also appear to allow duplicate rating for the same condition.

The WCAB rescinded the WCJ’s findings and determined that the strict AMA guides rating for psychiatric permanent disability be included in combined with the compensable physical disability rating, increasing applicant’s permanent disability from 57% to 78%.

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