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Grinberg: WCAB Rejects Psych PD, Places Burden on Applicant

  • State: California
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In the panel case of Sosa v. Race Engineering Inc., applicant claimed injury to his hand, psyche, internal system, skin, gastrointestinal system and sleep as a result of an admitted injury, but defendant accepted only the hand. 

Gregory Grinberg

Gregory Grinberg

The parties proceeded to trial, and the main issue that went up on appeal is whether psychiatric permanent disability was compensable and could be combined with permanent disability for the hand injury.

So a bit of background: As we all know, in 2013 the California Legislature enacted SB 863, which added Labor Code Section 4660.1 incorporating the following language in 4660.1(c)(1): “Except as provided in paragraph (2), there shall be no increase in impairment ratings for sleep dysfunction, sexual dysfunction or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury.”

However, in January of 2020, section (c)(1) was amended to reflect “the impairment ratings for sleep dysfunction, sexual dysfunction or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase.” So we went from “there shall be no increase in impairment rating” to “shall not increase.” 

Applicant’s counsel in the Sosa case took the position that this amendment reflects that impairment ratings for those conditions shall not be increased by a factor of 1.4, and orthopedic injuries shall. So PD for psych is recoverable as part of the 2020 amendment to Labor Code 4660.1.

The trial judge and the Workers' Compensation Appeals Board were not persuaded.  Looking at the legislative counsel’s digest on the amendment, the amendment was described as making “nonsubstantive changes.”

Applicant also argued that the psychiatric condition was what is colloquially called a “pure psych” claim, resulting from the mechanism of the orthopedic injury rather than a compensable consequence. The WCAB rejected this as well, as the reports in the record acknowledged predominant industrial causation but did not specify if that causation was a compensable consequence or directly from the result of the mechanism of injury. 

As such, the claimed additional permanent disability for the psychiatric condition was not awarded.

All in all, a good result. What can we take away from this?

Based on the Sosa decision, it appears that the amendment to 4660.1 is “nonsubstative,” meaning we still do not allow increases in PD for compensable consequence psych cases other than for narrow circumstances (such as violent acts). 

Also, it is applicant’s burden to prove that the psychiatric condition is not only predominantly caused by the actual event of employment, but it is likewise applicant’s burden to prove that the psychiatric condition is predominantly caused by the mechanism of injury, rather than a compensable consequence of an orthopedic injury. 

We can also infer from the Sosa decision that, at least the Sosa panel was not inclined to order further development of the record.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.

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