On May 10, 2019, and July 15, 2019, the WCAB issued en banc decisions regarding whether an applicant’s injury could be deemed “catastrophic” pursuant to Labor Code Section 4660.1(c)(2)(B) and therefore qualify for an increased impairment rating for his resultant psychiatric injury.

En banc decisions of the Workers’ Compensation Appeals Board are binding precedent on all Appeals Board panels and workers’ compensation judges. (Title 8, California Code of Regulations Section 10341.)

In May 2019, the Board issued its first en banc decision in Wilson v. State of California Cal Fire (ADJ10116932). Applicant was a firefighter for the Department of Forestry who had sustained life-threatening injuries as a result of fighting a wildfire in Lompoc in May 2014. The applicant had performed his duties without wearing a breathing apparatus and had inhaled smoke and fumes from the fire for several hours. He later presented to the emergency room with “complaints of rash, shortness of breath, nausea, vomiting, low back pain, neck pain, headache and dizziness (when standing), crusty bilateral eye discharge, difficulty speaking, and sore throat with swelling of the left side of his neck.”

The following morning, after presenting to Kaiser with “difficulty breathing, blisters on the back of his ears, and ulcers in his throat and mouth,” he was transferred to Antelope Valley Hospital, where he was intubated for respiratory failure and acute respiratory distress syndrome (ARDS) and remained on mechanical ventilation in the ICU for two weeks.

Applicant was eventually extubated and discharged from the hospital in June 2014.

In April 2015, the applicant attempted to return to work, but he found that he was “unable to keep pace with his coworkers and became concerned about his ability to work as a firefighter.” He was taken off work by his physician in July 2015.

The applicant was evaluated by neurology, cardiopulmonary, internal, potamology, and psychiatric evaluators, and, at the time of trial, the parties stipulated to injury to the applicant’s “lungs, psyche, left eye, head, and brain.” His impairment rating exclusive of psychiatric injury disability was 66%.

With regard to the psychiatric injury, the parties were unable to agree whether an increased impairment rating and indemnity relative to the applicant’s consequent psychiatric injury were permissible under Labor Code Section 4660.1(c)(2)(B).

Labor Code Section 4660.1(c)(1) provides, “Except as provided in paragraph (2), there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of the physical injury.”

Section 4660.1(c (2) (B), however, provides:

An increased impairment rating for psychiatric disorder shall not be subject to paragraph (1) if the compensable psychiatric injury resulted from either of the following: …

(B)  A catastrophic injury, including but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.

At trial, the WCJ determined that the applicant’s claim did not qualify for an increased impairment rating for his psychiatric injury. She reasoned that, in the context of Labor Code Section 4660.1(c)(2)(B), “It is not the consequences of an injury that are catastrophic but the injury itself” which entitles a claimant to an increased rating for such impairment.

The Board in its May 10, 2019 en banc decision reversed the WCJ’s ruling in this regard and found that the applicant’s injury was “catastrophic” under Section 4660.1(c)(2)(B), and that he should receive an increased impairment rating for his psychiatric injury.

The Board held that “determination of whether an injury is catastrophic under section 4660.1(c)(2)(B) focuses on the nature of the injury and is fact driven” and enumerated five factors which the trier of fact may consider in determining whether the injury is catastrophic:

1. The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve from the effects of the injury.
2. The ultimate outcome when the employee’s injury is permanent and stationary.
3. The severity of physical injury and its impact on the employee’s ability to perform activities of daily living (ADLs).
4. Whether the physical injury is closely analogous to one of the injuries specified in the statute: loss of a limb, paralysis, severe burn, or severe head injury.
5. If the physical injury is an incurable and progressive disease.

Additionally, the Board cautioned that appropriate fact-based inquiry might not be limited to these five factors alone.

Defendant sought Reconsideration of the May 2019 En Banc decision and asserted that “the five factors outlined by the [May 2019] Opinion are not authorized by section 4660.1(c)(2)(B) or legislative history, and that the Appeals Board exceeded its authority by promulgating these five factors.”

On July 15, 2019, the Board responded to the defendant’s petition with its second en banc decision in the same case, maintaining that it had made a correct determination regarding the applicant’s “catastrophic” injury qualifying for an increased impairment rating, and dismissing the defendant’s contention that the Board had exceeded its authority in creating and promulgating its five-factor analysis for resolution of Labor Code section 4660.1(c)(2)(B) disputes.

The Board pointed out that “the Labor Code expressly vests the Appeals Board with the ‘power and jurisdiction to do all things necessary or convenient in the exercise of any power or jurisdiction conferred on it under [the Labor Code].’” The factors listed were developed after analysis of the statute itself, legislative history and intent, and “the overall purposes and polices governing the workers’ compensation system.” Citing Bodinson Mfg. Co. v. California Employment Com. (1941) 17 Cal. 2d 321, 325, it observed, “an ‘administrative agency charged with carrying out a particular statute must adopt some preliminary construction of the statute as a basis upon which to proceed.’” Other analytical frameworks have previously been provided by the Board in other cases, such as Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241 (Appeals Board En Banc), McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal Comp. Cas. 138, and Suon v. California Dairies (2018) 83 Cal. Comp. Cases 1803.

The defendant’s contention that the Board had improperly adopted a “new rule or regulation” in establishing its analytical framework was likewise deemed without merit.