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The Ongoing Battle for the Add-On Disability

The enactment of SB 863 in 2013 brought with it a much-welcomed prohibition of “add-on” disabilities for sleep dysfunction, sexual dysfunction and psychiatric injury. This was accomplished by Labor Code §4660.1(c) which provided that there shall be no increase in impairment ratings for sexual, sleep or psychiatric disorders arising as a compensable consequence of a physical injury. These types of claims, of course, proliferated following the enactment of the AMA Guides as the basis for rating impairment. With the use of the “new schedule” rating, virtually every injured worker suddenly suffered from sexual dysfunction or sleep disorder as a result of their physical injuries. It must be remembered, however, that Labor Code Section 4660.1(c) bars only permanent impairment as a result of these claims, not possible temporary disability or need for medical treatment. Nevertheless, the enactment of this code section dramatically decreased the number of these types of claims since they could no longer be used to hike up the overall permanent disability rating.

There are exceptions to Labor Code §4660.1(c). First of all, the code section only applies to compensable consequences of the physical injury, not a direct injury. For instance, if a psychiatric impairment, such as a posttraumatic stress syndrome, is the direct result of an injury, Labor Code §4660.1(c) would not apply. (See Madson v. Michael J. Cavaletto Ranches, 2017 Cal. Wrk. Comp. P.D. LEXIS 95) in which a motor vehicle accident caused a posttraumatic stress disorder, in addition to physical injuries, and was not barred by Labor Code §4660.1.)

Additionally, there are two specific exceptions built into Labor Code §4660.1. The unavailability of permanent impairment for these “add-on” injuries does not apply where the applicant was either a victim of a violent act, or the injury could be described as “catastrophic.” Neither of these exceptions are well defined in the statute, and case law has been slow in developing. However, there have been a number of cases which give parties some guidance as to how and when these exceptions would apply.

The WCAB has found that a violent act need not be in the nature of a criminal act, such as a robbery or assault, but rather has provided a broader definition. For instance, the Board has characterized a motor vehicle accident as a violent act in Larsen v. Securitas Security Services, (2016) 81 CCC 770. They have also concluded that a tree trimmer’s fall from a 20 foot tree could be characterized as violent using a broad dictionary definition of violence which would include any “strong physical force.” (Torres v. Greenbrae Management, 2017 Cal. Wrk. Comp. P.D. LEXIS 230) Further litigation of these types of issues is no doubt forthcoming, since such a broad definition of violence would seem to result in the exception swallowing up the rule. That is, arguably any incident causing a physical injury could be characterized as resulting from some strong physical force.

Similarly, the catastrophic injury exception has resulted in conflicting case law. The applicant’s bar has argued that the physical injury itself may not need to be catastrophic if it in fact had a catastrophic “effect” on an injured worker’s life, such as loss of income or loss of physical functioning. This argument has not been addressed by the courts. The WCAB has appeared to limit definition of catastrophic to the physical, finding for instance that a severe crush injury in a hydraulic press resulting in in partial amputation qualified as catastrophic. (Guerrero v. Ramcast Steel Fabrication, 2017 Cal. Wrk. Comp. P.D. LEXIS 285)

Notwithstanding the exceptions, it would appear that Labor Code §4660.1(c) has achieved its intended purpose by severely reducing the number of “compensable consequence” sleep, sex and psyche claims since its enactment in 2013.

By Christopher Philippides Sacramento Office March 2019