The leader in workers’ compensation defense law.

Counseling employers and insurance carriers throughout California.

Subscribe

Subscribe to our email list to receive bulletins as well as invitations to our latest seminars and workshops.

Join Our Email List

Bulletin Archives

MAY WE HAVE YOUR ATTENTION

Necessity may be the mother of invention, but mothers are absolutely a necessity to all human invention. With Mother’s Day being celebrated this month, Mullen and Filippi wants to pause to give recognition to the millions of working moms that switch hats each day to bring their talents to bear both in the workforce and at home.  

SANTA ROSA ASSOCIATE PARTNER WILLIAM DAVIS NAMED DEFENSE ATTORNEY OF THE YEAR BY THE CLA

Hot on the heels of Bill Davis’s big win in at the Court of Appeal level in the Lindh case, the Executive Committee of the Workers’ Compensation Section of the California Lawyers Association has recognized his accomplishments by naming him as the Steve Jimenez Memorial Defense Attorney of the Year for 2019. The Award Reception will take place 10/11/2019 at the Monterey Marriott. Congratulations are in order in a big way to Bill for all his hard work this year. Comedian Steve Martin, when asked for advice on how to succeed once said, “be so good they can’t ignore you.” The saying proves true, as recognition from his peers in the workers’ compensation community was earned the good old-fashioned way: quality work! This bulletin has addressed the Lindh case and its significance in great detail in past issues so it won’t be rehashed here, but, suffice to say, it may well represent a sea change in how WCJs and the WCAB approach apportionment. This now makes two Mullen & Filippi attorneys to win the award since 2017, as Carol Powell of our Oakland office also was recognized as defense attorney of the year in 2017.

RESULTS ROUND-UP

Speaking of Ms. Powell, it isn’t just the Golden State Warriors who are winning big in Oakland when everything is on the line. This month she recently received an entirely favorable Decision after Reconsideration from the WCAB. She had originally taken a case to trial that involved a 2017 petition for new and further disability arising out of a 2012 injury to the low back that settled by Stipulations in 2016. As part of the new and further petition, applicant had also alleged psychiatric injury and disability. The record was not developed by applicant when discovery was closed for trial and applicant then sought to file a new Application alleging psychiatric injury in 2018. After trial, the WCJ found no new and further psychiatric disability and found that applicant, who had been terminated by the employer in 2016, should take nothing on the new Application for psychiatric injury as it was barred by the statute of limitations. The WCJ, however, relying on medical records that issued after the medical report upon which permanent disability was based but before the 2016 Stipulations were executed, found that the new and further allegations as to the low back could not be dismissed and merited further discovery. Carol filed a Petition for Reconsideration as to that point. In a unanimous panel decision, the WCAB found that the medical evidence that existed prior to the parties entering into Stipulations could not be used to show new and further disability beyond that reflected in the Stipulations, citing Nicky Blair’s Restaurant v. WCAB. Kudos to Carol for fighting through a procedural morass to obtain a great result for her client.

THE DEFINITION OF CATASTROPHIC

In response to the widely perceived abuse of compensable consequence (or “add on”) psychiatric claims to increase impairment ratings, the legislature enacted SB 863, which eliminated increases in impairment due to psychiatric injury arising out of a compensable physical injury. However, this limitation was not applicable, per Labor Code 4660.1(c)(2), to cases where a worker was a victim of a violent act or suffered a catastrophic injury. The phrase catastrophic injury in the statute was further developed with an illustrative but not limiting list of catastrophic injuries, including (but not limited to) loss of a limb, paralysis, severe burn, or severe head injury. While the statute provided some guidance as to what defined a catastrophic injury, it left its interpretation ambiguous and workers and employers alike have been uncertain as to what qualifies as catastrophic for the purposes of Labor Code 4660.1(c)(2). While statutory ambiguity may give lawyers a chance to break out Latin maxims of statutory interpretation they learned in law school, including (but not limited to) expressio unius est exclusio alterius, eiusdem generis, and noscitur a sociis, such ambiguity generally makes handling claims less certain and leads to inconsistent results in the award of benefits.

The WCAB, in an En Banc decision, however, has now provided at least some clarification as to the definition of catastrophic injuries in the case of Wilson v. State of CA CAL Fire (2019). While not providing a conclusive definition of the phrase, the WCAB indicated that the focus of the statute is on the nature of the physical injury itself rather than either the mechanism of injury or the psychiatric response to the injury. In doing so, the WCAB rejected the interpretation by some practitioners that the mechanism of injury itself must be catastrophic, as in the case of explosions or building collapse and instead focuses on whether the physical result of an injury is itself catastrophic. The WCAB held that the inquiry into whether an injury is catastrophic should be “fact-driven.”

The WCAB then provided a list of factors to be considered when determining whether an injury is catastrophic. The WCAB stated that factors to be considered are: 1) the intensity and seriousness of treatment reasonably required to cure or relieve from the effects of the physical injury; 2) the eventual outcome when the worker is permanent and stationary; 3) the severity of the physical injury and its affects on activities of daily living; 4) whether the physical injury is analogous to loss of limb, paralysis, severe burn, or severe head injury; and 5) whether the physical injury is an incurable and progressive disease.

These factors will at least help guide analysis in cases where “add-on” psychiatric impairment is sought, though the WCAB was clear that it was not issuing a “bright line” test. The WCAB indicated that the factors above are not the only factors to consider and that an injured worker need not submit evidence addressing each factor to prove a catastrophic injury. As the inquiry is to be fact driven, it is very likely that this framework will be further developed through litigation and additional case law. The factor that looks to whether a physical injury is an incurable and progressive disease is interesting as it seems to add another clear example to the specific types of injuries set forth in the statute and will likely lead to an increase in compensable psyche claims in toxic exposure and occupational disease cases.

The WCAB then provided a list of factors to be considered when determining whether an injury is catastrophic. The WCAB stated that factors to be considered are: 1) the intensity and seriousness of treatment reasonably required to cure or relieve from the effects of the physical injury; 2) the eventual outcome when the worker is permanent and stationary; 3) the severity of the physical injury and its affects on activities of daily living; 4) whether the physical injury is analogous to loss of limb, paralysis, severe burn, or severe head injury; and 5) whether the physical injury is an incurable and progressive disease.

These factors will at least help guide analysis in cases where “add-on” psychiatric impairment is sought, though the WCAB was clear that it was not issuing a “bright line” test. The WCAB indicated that the factors above are not the only factors to consider and that an injured worker need not submit evidence addressing each factor to prove a catastrophic injury. As the inquiry is to be fact driven, it is very likely that this framework will be further developed through litigation and additional case law. The factor that looks to whether a physical injury is an incurable and progressive disease is interesting as it seems to add another clear example to the specific types of injuries set forth in the statute and will likely lead to an increase in compensable psyche claims in toxic exposure and occupational disease cases.

NEW CASE BRIEFS AVAILABLE!

The Case Briefs section of our website is a great resource as to case law and statutory interpretation in workers’ compensation and provides practice pointers, insights into recent cases, and updates on changes in the law. This month, Associate Attorney Nicolas Scibetta of our Oakland office discusses a recent WCAB decision that addresses the language of Labor Code 3208.3, which sets a higher threshold for compensability of psychiatric injuries. The WCAB found that Labor Code 3208.3 limits the application of the Labor Code 5402(b) presumption of compensability where a claim is not denied within 90 days. The WCAB, in the case discussed, went so far as to allow evidence of a good faith personnel defense to be admitted even where that evidence was not obtained but could have been obtained within the first 90 days after the filing of a claim.

Please head to www.mulfil.com/case-briefs to give them a read.
This Bulletin was written by Jim Cotter, Associate Partner in our Oakland office.