The medical evidence presented in the case indicated first of all that the permanent disability from the psychiatric injury was apportioned 50% to non-industrial causes. (We do not know to what extent the "injury" was industrial vs. nonindustrial). As to the heart and cardiovascular injury, the AME on that issue indicated that the problems were due to both industrial and non-industrial causes, weighted more heavily towards industrial causes, with a final apportionment decision deferred.

The first issue is whether a non-psychiatric condition, which is due to psychiatric causes, is only compensable if the causation analysis complies with the standards of Lab. Code � 3208.3. Insofar as the original psychiatric injury is concerned, we know that it met the Lab. Code � 3208.3 standard as it was held compensable. The question that is answered with no discussion whatsoever is whether the heart and cardiovascular claim itself must meet the "preponderance of causation" standard, and if so, whether the percentage of causation of the heart and cardiovascular injury is to be calculated as the percentage of causation of the psychiatric injury multiplied by the percentage of which the psychiatric injury contributed to the cardiac injury. The case was remanded to the Workers' Compensation Judge and so it will be interesting to see if this issue is addressed at that point. [Editor's Note: Upon remand, the case was resolved by stipulations, and neither party subsequently sought reconsideration.]

Most of the cases which address the issue of whether the Lab. Code � 3208.3 standards apply to a stress-caused physical injury have held that the standards do not apply. City of Cypress v. WCAB (Spernak), 61 Cal. Comp. Cases 612 (writ denied); Chino Unified School District v. WCAB (Chamorro), 62 Cal. Comp. Cases 175 (writ denied); National Union Fire Insurance Co. v. WCAB (Clinton), 66 Cal. Comp. Cases 415 (writ denied); The May Company v. WCAB (Hull), 66 Cal. Comp. Cases 1378 (writ denied). There are some cases, however, which do allow the defenses to apply. Amezcua v. WCAB, 55 Cal. Comp. Cases 122 (writ denied) and Metropolitan Water District v. WCAB (Woo), 69 Cal. Comp. Cases 1242 (Court of Appeals Unpublished) both allowed the psychiatric defenses of Lab. Code � 3208.3 to be used in a suicide case. In Price v. WCAB, 65 Cal. Comp. Cases 970 (writ denied), the psychiatric defenses were allowed against orthopedic symptoms emanating from a psychiatric claim.

The second issue, and the one most directly discussed by the panel, is whether the stress from the litigation of the New and Further claim was considered an industrial liability. The panel distinguished Rodriguez on the basis that in Rodriguez there was no finding that there was an underlying psychiatric claim that was industrial, and so the mere fact that the litigation caused stress did not make for an industrial psychiatric claim. This arguably is a distinction without a difference. In Rodriguez there was an industrial orthopedic claim. As the result of the litigation process, applicant developed a psychiatric condition. The Court of Appeals held that the psychiatric condition was too far removed from the underlying orthopedic condition to be considered industrial, saying that a reaction to the litigation process was not an industrial injury.

In this case there was an industrial injury and once again an injury developed as the result of the litigation. Arguably it should not matter if the underlying injury was orthopedic or psychiatric. The panel attempts to justify its decision on the basis that the "compensable consequence" is physical, rather than psychiatric. (An indirect reference to issue #1). That also would seem questionable since there is nothing in Rodriguez which suggests that the lacking nexus has anything to do with the type of injury incurred. Although the result seems questionable, it is in accord with California Youth Authority v. WCAB (Walker), 60 Cal. Comp. Cases 1099 (writ denied), another case where Rodriguez was distinguished on the basis that as here, in Walker, the underlying injury itself was psychiatric. It seems that there will be subsequent litigation on this issue, if not in this case, in similar factual scenarios.

Any information or opinion contained in this commentary are not necessarily endorsed by LexisNexis or its affiliates or by the LexisNexis editorial consultants who review panel decisions.

� Copyright 2010 LexisNexis. All rights reserved. This article was excerpted from a commentary that appeared in the August 2010 issue of California WCAB Noteworthy Panel Decisions Reporter.