Grinberg: Compensable Consequence for Spouse's Reaction to Industrial Injury
Thursday, May 7, 2020 | 0
How far can you stretch workers’ comp? Well, as it turns out, even though our beloved swamp will stretch and stretch and stretch, it does have a limit. Though rarely seen, it is there.
That brings me to the recent panel decision of Gomez v. State of California Department of Corrections. Therein, applicant argued that “the behavior of [her] husband in response to her positive TB test constitute actual events of employment for the purposes of determining causation under Labor Code Section 3208.3.”
Yeah, I had to read that a few times to follow it myself, so if it doesn’t make sense right away or if you find yourself squinting in disbelief, I’m right there with you.
Briefly, the facts are straightforward: Injured worker tests positive for tuberculosis and the claim is accepted as industrial. She gets a nine-month course in treatment. Her husband doesn’t respond to this well and the marriage falls apart, and, ultimately, there’s a divorce. The psych qualified medical examiner concluded that the predominant cause of her psychiatric impairment was the response of her husband, which, in turn, was due to her industrial injury.
Of course, that means that the predominant cause of the psychiatric compensable consequence was the industrial injury, right?
Now, of interest here, is that the psychiatric condition was NOT caused by the diagnosis of or the treatment for tuberculosis, but purely how applicant’s husband reacted to the diagnosis and, presumably, applicant’s reaction to her husband’s reaction.
The matter proceeded to trial. The judge agreed and found the psychiatric injury to be a compensable consequence. Naturally, defendant sought reconsideration.
The panel first started by citing Rodriguez v. WCAB for a definition of a compensable consequence: “[A] secondary incident which, although perhaps a new and distinct injury, is not a new and independent injury but rather the direct and natural consequence of the primary incident” (emphasis added by WCAB panel).
The commissioners then reasoned that because Labor Code Section 3208.3 imposes a higher threshold of compensability for psychiatric injury, the reaction of applicant’s husband to her industrial injury “was not a ‘direct and natural’ consequence of her industrial injury. To the contrary, the WCJ in her report characterized the reaction as ‘bizarre’…”
The commissioners reversed and entered a finding that the psychiatric claim was non-industrial.
So, I am naturally pleased with the result. This is a stretch too far and the conclusion is a proper one. But what if we tweaked the facts a little bit?
Let’s say a hypothetical applicant is in the same scenario, but the hypothetical applicant’s spouse reacts with domestic violence resulting in serious injury. There is no higher threshold for orthopedic injuries than there are for psychiatric ones, so does a compensable-consequence broken arm as a result of an angry spouse’s attack become admissible?
The cited language in Rodriguez seems to militate against such a finding: Do we, as a society, expect that the direct and natural consequence of an injury is to incur violence from a spouse or family member? I would think not and would certainly hope not.
What do you think? How far does the “Compensable Consequence Stretch Armstrong” toy really stretch?
Gregory Grinberg is a workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.