Compensable consequences have challenged both adjusters and attorneys alike for decades. These types of injuries frequently require medical treatment and third party administers often lack sufficient medical information regarding the nature of the claim and whether to provide treatment. Delayed treatment can lead to increased costs and greater exposure down the road.
Compensable consequences are not defined in the labor code requiring the need for case law to establish a working definition.
A recent Noteworthy Panel Decision, Bates v. Serologicals Corp, CWC Lexis 194, compensable consequences doctrine was defined. “…[W]here a subsequent injury is the direct and natural consequence of an original industrial injury, the subsequent injury is considered to relate back to the original injury and it generally is not treated as a new and independent injury.”
In Bates, a lab tech suffered an admitted industrial injury to the right upper extremity. Mr. Bates returned to his usual and customary position, but his right extremity was not fully functioning. He would have to push carts up a slant, easy with both arms working, but challenging with only one. On one of the days, as Mr. Bates was trying to push the cart with his hips and left arm, his knee buckled causing injury to his left lower extremity.
Even though these two injuries appear to be entirely unrelated, the WCAB clearly explained the determining factor was whether or not the original industrial injury to the right arm was a contributing cause of the injury to the left knee. This issue is addressed by a medical determination.
An interesting aspect of Bates was both physicians agreed there was no connection between the two injuries, but provided no analysis to establish their conclusion. Both reports were not considered substantial evidence and the matter was returned to the trial level to develop the record further on this issue. The physicians in Bates failed to provide an adequate causation of injury analysis for the compensable consequence injury.
The role in establishing the proper legal standards is not solely rested on the shoulders of the physicians. Courts have gone on to explain that a doctor might not be able draft a legally sound report without assistance from the parties. Therefore, it is the role of the attorneys to adequately explain the legal standards to a physician to ensure a report that will constitute substantial evidence.
SB863 has come into play regarding compensable consequence injuries with Labor Code section 4660.1(c)(1) providing, “…there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction or psychiatric disorder, or any combination thereof, arising out of a compensable injury….” Sleep, sexual dysfunction and psyche will not be entitled to increase a whole Person Impairment (WPI), unless they directly claimed injuries. If that is the case, those injuries may still be eligible for a WPI increase.
There is an exception to Labor Code section 4660.1(c)(1), allowing for an increase in impairment ratings from a psychiatric disorder caused by physical injury if the injury itself was from a violent act, direct exposure to a significant violent act under Labor Code section 3208.3 or there is a “catastrophic injury, including, but not limited to, loss of limb, paralysis, severe burn or severe head injury.”
It is anticipated that an increase in litigation will occur on the issue of whether a psyche claim is a stand-alone claim or is limited under section 4660.1(c) as a compensable consequence of a physical injury and is not an exception under section 4660.1(c)(2).
When confronted with compensable consequence injuries, it is imperative to address the injury to the physician who should be thoroughly informed on how to analyze a compensable consequence injury. The delays and increased costs could significantly impact even the most straightforward workers compensation claims.