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PSYCHIATRIC INJURY

Labor Code §3208.3 makes psychiatric injuries compensable if they meet certain criteria: "a mental disorder which causes disability or need for medical treatment, and it is diagnosed pursuant to [DSM]; "an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury,....."; "the employee has been employed by that employer for at least six months. The six months of employment need not be continuous. This subdivision shall not apply if the psychiatric injury is caused by a sudden and extraordinary employment condition."

The statute notes: "It is the intent of the Legislature in enacting this section to establish a new and higher threshold of compensability for psychiatric injury under this division."

Defenses include post-termination and "lawful, nondiscriminatory, good faith personnel action. The burden of proof shall rest with the party asserting the issue."

For a discussion of the legislative intent behind the addition to the Labor Code and later changes in Section 3208.3, see Lockheed Martin Corp. v. WCAB (McCullough) (2002) 96 Cal. App. 4th 1237, where the Court of Appeal concluded that "at least since the 1993 amendment, a “compensable consequence psychiatric injury” is governed by section 3208.3, and the precipitating physical injury constitutes an “actual event[ ] of employment” within the meaning of subdivision (b)(1). That is, a consequential psychiatric injury is compensable if and only if it is more than half attributable to a physical industrial injury."

McCullough in a footnote quotes from Hanna: “There are three general types of psychological injury related to employment:  (1) physical injury producing psychic trauma or symptoms not physiologically verifiable [physical-mental];  (2) psychic trauma producing physical injury [mental-physical];  and (3) psychic trauma producing psychological injury [mental-mental].”

SB 863 further curtailed psychiatric claims by not allowing an impairment rating for psychiatric disorder if it arises out of a compensable physical injury unless there was a violent act or catastrophic injury: see Labor Code §4660.1 for injuries on or after 1/1/13; treatment is still allowed, and presumably temporary disability.

Rating of psychiatric injury is not generally under the AMA Guides but instead uses GAF, the Global Assessment of Function, to assess psychiatric permanent disability: see 2005 rating schedule (p. 1-12). If the psychiatric injury was a compensable consequence of a physicial injury on or after 1/1/13, there is no additional permanent disability for that unless it resulted from either:

(A) Being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3.
(B) A catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury. (Labor Code §4660.1(c)(2))

At present “catastrophic” remains to be defined. California Society of Industrial Medicine and Surgery (CSIMS) has published a paper suggesting a systematic definition from a clinical perspective.

Label Item Links Comments
Labor Code Conditions of compensability LC §3208.3   
  No impairment rating for psychiatric disorder if it arises out of a compensable physical injury unless there was a violent act or catastrophic injury. LC §4660.1  
Regulations/Rules Method of Measurement of Psychiatric Disability



A medical evaluation concerning a claim for psychiatric injury (whether specific or cumulative in nature) shall not be completed by a QME in less than one hour of face to face time. One hour is considered the minimum allowable face to face time for an uncomplicated evaluation. The evaluator shall state in the evaluation report the amount of face to face time actually spent with the injured worker and explain in detail any variance below the minimum amount of face to face time stated in this regulation.
8 CCR §43



8 CCR §49.8
Note different evaluation methods depending on date of injury
Cases Lockheed Martin Corp. v. WCAB (McCullough) (2002) 96 Cal. App. 4th 1237: a “compensable consequence psychiatric injury” is governed by section 3208.3."

In Sonoma State Univ. v. WCAB (Hunton) (2006) 142 Cal. App. 4th 500, the Court of Appeal held that "a claimant's psychiatric injury satisfies the standard for compensability set forth in section 3208.3 only if it is proven that events of employment were predominant as to all causes combined of the psychiatric disability taken as a whole."

Matea v. WCAB (2006)144 Cal.App.4th 1435: lumber falling from a Home Depot shelf onto an employee was "a sudden and extraordinary employment condition" that defeats the 6-month requirement; see SCIF v. WCAB (Garcia) for a contrary view that an avocado picker who fell from a ladder failed to meet the burden of proving that a fall from a ladder in an orchard was "uncommon, unusual and totally unexpected."

WCAB in en banc decision established 4-step analysis that a WCJ must perform, which relies on factual/legal determinations and medical evidence. The WCJ decides "whether any of the actual events of employment were personnel actions, and if so, whether any of them were lawful, nondiscriminatory, good faith personnel actions....Finally, if any lawful, nondiscriminatory, good faith personnel actions contributed to the injury, medical evidence is required to determine whether such personnel actions were a
substantial cause, 35 to 40 percent, of the injury, as defined by subdivision (b) (3)."

In Verga v. WCAB (2008) 159 Cal.App.4th 174, the Court of Appeal held: "the disdainful reactions of co-workers to Verga's abusive conduct were neither "actual events of employment" nor the "predominant cause" of her psychological injuries within the meaning of the statute."

County of Butte, et al. v. W.C.A.B. (Purcell) (2000) 65 Cal.Comp.Cases 1053 (Writ Denied): "We concur with the WCJ's analysis that every "action by management" does not constitute a personnel action. This interpretation urged by defendant is too broad and would deny compensability in any case involving an injury arising from management criticism of an employee's conduct."
Lockheed Martin Corp. v. WCAB (McCullough)


Sonoma State (Hunton)






Matea v. WCAB

State Fund v W.C.A.B. (Garcia)






Rolda v. Pitney Bowes, Inc.











Verga v. WCAB
 
Forms



Websites Psychiatric Interview Psychiatric Interview   Overview and key concepts
Practice Tips It is a good practice to warn your client and get consent before filing a psychiatric claim. The editor sends this: "Please acknowledge that I have informed you that while the documents establishing a psychiatric claim cannot be obtained by your employer or potential employers, an employer or potential employer may find out that you have filed such a claim. While employers are forbidden by California law to consider workers’ compensation claims when deciding whether or not to hire you, you should be aware that they might use this information in an unlawful way to deny you employment.

In deciding whether you want to bring a psychiatric claim, you should consider the benefits in terms of treatment and other forms of compensation that you might obtain from filing such a claim, and weigh that against the potential risk of being unlawfully denied employment.

If you wish me to proceed with the psychiatric claim, please indicate that in your own words (such as “Please file a psychiatric claim on my behalf”). If you have decided against bringing a psychiatric claim, please say, “I have decided not to bring a psychiatric claim."

Please feel free to ask questions or discuss this further with me."
   
Publications Psychological Evaluations in Litigation: A Practical Guide for Attorneys and Insurance Adjusters by Bruce Leckart, Ph.D.  Leckart Guide (free)  Download

Articles Essentials of a High Quality Psychological or  Psychiatric Report by Bruce Leckart, Ph.D.

Depression: The Hidden Cost of Compensable Work Injuries

The Real McCoy: Is a “Mental-Physical” Injury Compensable? by Robert G. Rassp, Esq.

Report essentials


Depression: The Hidden Cost

Rassp on “Mental-Physical” Injury

 
Magazine Articles Five Facts About Psych Injuries Every Workers' Compensation Attorney Should Know by John F. Tholen, Ph.D.

Psychology: Interview with Bruce T. Leckart, Ph.D.
Five Facts



Leckart Interview
Roundtable Coaching Attorneys To Win Psych Cases by Bruce Leckart, Ph.D. Leckart 4-13  
Miscellaneous      

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