Defining Catastrophic Injuries
Wednesday, November 6, 2013 | 0
One of the larger questions surrounding the 2012 Senate Bill 863 California workers' comp reforms is how "catastrophic" will be interpreted.
Labor Code 4660.1(c) was added to prevent permanent disability ratings for psychiatric disability (and sleep and sexual dysfunction) for post 1/1/2013 cases "arising out of a physical injury". This would encompass so called "physical-mental" injuries though it does not address so called "mental-mental" injuries that are based on harassment or cumulative employment non-physical events.
But Labor Code 4660.1(c) has exceptions.
One is where the compensable psyche injury occurred as a result of a "violent act" or "direct exposure to a significant violent act within the meaning of Section 3208.3".
The other exception is for "a catastrophic injury, including, but not limited to, loss of limb, paralysis, severe burn, or severe head injury".
In enacting SB 863, the legislature did not define catastrophic. Did they mean that the injury itself must occur in some dramatic, spectacular fashion? Head-on collisions, burning buildings, falls from scaffolds and the like?
One problem with this analysis is that it is not hard to find easy exceptions to that analysis. A worker might twist in the wrong fashion in picking up a heavy box, herniate a disc, and become paralyzed. A diabetic welder might inadvertently burn a small piece of flesh which then becomes infected, causing a loss of limb. A construction laborer might trip over an uneven piece of ground, falling and hitting his skull with a resultant severe head injury.
These are not workers who are injured in a fashion that makes it to the 11 o'clock news. In fact, their mechanism of injury is relatively undramatic. But the injury for them is catastrophic.
Some employer advocates will argue that the courts will be able to sort this out. After all, that is what courts do, right? In his opinion in an obscenity case, Jacobellis V. Ohio, Justice Potter Stewart noted that he could not intelligibly define hard-core pornography, "but I know it when I see it."
In California workers' comp, the Workers' Compensation Appeals Board and the appellate courts have been forced to determine whether various injury mechanisms constituted "sudden and extraordinary events of employment" for purposes of Labor Code 3208.4(e)(1).
But sorting out "sudden and extraordinary" may be easier than trying to decide whether a fall from a step stool versus a ladder versus a scaffold is or is not catastrophic.
A better approach would be to focus on the effect of the injury. Granted, the intent of the SB 863 reforms was clearly to place some limits on psyche claims, so if every injury is "catastrophic" then the code would have litle meaning.
In an attempt to give structure to this debate, a task force of doctors from the California Society of Industrial Medicine (CSIMS) have proposed a framework for clinically defining "catastrophic".
The CSIMS analysis can be seen here.
https://csims.org/system/pdfs/293/original/Systematic%20Definition%20of%20Catastrophic%20-%20CSIMS%20101813.pdf
CSIMS identified 12 factors that can medically contribute to a catastrophic injury, 5 of which relate to the mechanism of injury and 7 of which relate to the effects of the injury.
The CSIMS task force proposes that if the mechanism of injury was not one of those enumerated in the statute or "of equal medical significance", that catastrophic be defined by whether the worker's injury resulted in a variety of weighted factors on a proposed point scale.
Such factors would include:
- Extended period of temporary disability
- Repeated hospitalizations, surgeries or required use of assistive devices
- Bankruptcy, divorce or loss of home related in whole or part to the injury
- Work-injury caused cognitive deficits
- Chronic pain requiring intrathecal pump, narcotic dependence etc
- Serious mental illness
- Eligibility for Social Security disability as result of injury condition
A worker whose mechanism of injury was not "catastrophic" would need four of these factors to qualify for rating permanent disability for a "physical-mental" injury.
One might debate whether so many of these factors should be required, since it is arguable that even one of these factors may be a catastrophic effect for an individual worker and their family.
It would seem that a worker who has repeated surgeries and loses his home or family as a result would have sustained a personal catastrophe though the worker might only meet two criteria proposed. I'd argue that the CSIMS criteria are overly stringent if catastrophic refers to the effect of an injury rather than the mechanism of it.
But kudos to CSIMS for providing a discussion framework for determination of what is "catastrophic" if the courts allow a definition of catastrophic that blends the mechanism of injury with the effect of the injury.
It is possible that the ultimate determination of this issue will play out in the appellate courts on more traditional lines regarding legislative intent and statutory interpretation rules. In the meanwhile, CSIMS provides a practical approach which could be referenced by workers' comp judges as they hear these cases.
Julius Young is an applicants' attorney with the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his Workers' Comp Zone blog.
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