Calif Edition Banner March 2010
Vol 2, Issue 22

Find Solutions & Strategies                               May 31, 2011

Stress LabelStress-Related Compensable Consequence Injuries
When underlying industrial injury is psychiatric, should it be a game changer?
In This Issue
* RECENT PANEL DECISION: Utilization Review
* NEWS HEADLINES: New Acting Chief, SIP

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals: 


Thanks to James Ponzio, Esq. for sharing his viewpoints on stress-related compensable consequences.
If you haven't signed up yet for this FREE Calif. workers' comp eNewsletter, simply email me with your request, along with your name and email address.
Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development

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- Some Like it Hot: Top 10 Hot Button Employment & Labor Issues in Workers' Compensation

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compensable consequence

James PonzioStress-Related Compensable Consequence Injuries, by James T. Ponzio, Esq.


The WCAB panel decision in Patrick v. Marina City Club, 2010 Cal. Wrk. Comp. P.D. LEXIS 19, weighs in on two interesting issues relating to what constitutes industrial exposure. In Patrick the injured worker received an award for 26% permanent disability and further medical care for a cumulative psychiatric injury ending on July 19, 2001.


Applicant then filed a timely Petition to Reopen, claiming that there was new and further disability caused by this injury. The new and further disability was alleged to be to the heart and cardiovascular system, all as a compensable consequence of the original psychiatric injury.


The Workers' Compensation Judge denied the New and Further claim on the basis that the compensable consequence injuries to the heart and cardiovascular system were caused by the litigation process, and accordingly were barred by the holding in Rodriguez v. Workers' Comp. Appeals Bd., 21 Cal. App. 4th 1747, 59 Cal. Comp. Cases 14. The WCAB reversed, saying that since the underlying industrial injury was psychiatric, Rodriguez did not apply. Read more subscribers can link to the cases and statutes cited in this article. Be sure you're already logged onto your account.

recent panel decision - sneak preview

Each week we report one or two panel decisions that we're considering for the LexisNexis services:
NOTE:This free eNewsletter reports only a handful of panel decisions each month. If you want notification of all 50 to 65 noteworthy panel decisions added each month to the Lexis database, please consider purchasing our new panel decisions reporter. Panel decisions are citeable, but not binding precedent.


Medical Treatment; Reasonableness and Necessity; Utilization Review. WCAB, rescinding WCJ's finding in a majority opinion, held that there was not substantial evidence to support WCJ's award of medical treatment including housekeeping, pool and gardening services to applicant with injuries to back, knees and gastrointestinal system on 9/24/96 and during cumulative period 3/70 to 11/27/96, when WCJ based his award on reports of treating physician and AME, and on defendant's alleged failure to conduct timely utilization review of requests for services, and WCAB found that housekeeping, gardening and pool services did not fall under definition of "medical treatment" subject to utilization review, and that medical reports upon which WCJ relied did not constitute substantial evidence establishing that requested services was reasonable or necessary to cure or relieve applicant's industrial injury, as medical reports failed to set forth analysis of whether applicant ever performed these activities prior to his injury, whether activities in question were activities of daily living, whether activities would have serious or long term effects on applicant's industrial condition, and whether requested services were reasonable in light of scope of medical treatment and its defined goals. See Bishop panel decision.

blogs at the lexisnexis workers' comp law community 
Cal Comp CasesCal. Comp. Cases May Advanced Postings (5/25/2011), by Cal. Comp. Cases Staff. users can link to this week's advanced postings of "writ denied" cases to read the complete headnotes and case summaries. Read it.  



Fraud SignWorkers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, and Investigations (5/26/2011), by LexisNexis Workers' Compensation Law Community Staff. Read it.

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Jennifer C. Jordan, Esq., Editor-in-Chief

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An excellent new book ... a one-of-a-kind resource ... [Jennifer C. Jordan's] straight-talk is much appreciated when it comes to this illusive area of the law." 


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Workers' Comp Executive:

FLASH: Is State Fund Trying to Expand Its Reach?

FLASH: Is There a New Head at the Office of Self-Insurance Plans?

FLASH: Trouble with the Department's Rehabilitation Plan?

FLASH: Cal OSHA Standards Board Threatened

Copyright 2011 Providence Publications, LLP. All rights reserved. Reprinted with permission.


Other News Items: 

CA: Insurance Commissioner Announces Arrest of Business Owners for Premium Fraud

CA: Cal/OSHA Referral to DA Leads to Conviction of Roofing Contractor, Foreman

CA: So-Called "Job Killer" Bills Meet Uncertain Fate With Governor Brown.

CA: Physician, Two Others Arrested for Alleged Workers Comp Insurance Fraud, Health Care Fraud, Money Laundering

US DOL Administrative Law Judge Refers CNA for Criminal Investigation in Handling of Defense Base Act Claims.

US Cracks Down on Employers Who Hire Illegal Immigrants. 

Avizent Acquires Nationwide Risk Management Provider F.A. Richard and Associates.

Sedgwick CMS Announces Intent to Purchase Assets of Nationwide Better Health's Productivity Solutions.

citeability of panel decisions

CITEPractitioners should proceed with caution when citing to a panel decision that hasn't been designated as a "significant panel decision" by the Workers' Compensation Appeals Board, and should also verify the subsequent history of the panel decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers' compensation judges [see Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. subscribers can link to the cases cited above.

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NPDDesigned specifically for subscribers only, this monthly reporter saves you research time so that you can quickly find recent panel decisions on key topics.


We do the legwork for you: Our editorial consultants pour through hundreds of cases to find noteworthy decisions that you should know about.

What you get each month: Brief summaries of typically 40 to 65 cases, arranged by topic. Commentary articles written by guest contributors.
How you'll get it: (1) Word document (sent via email), which allows Lexis subscribers to link directly to the WCAB decisions on; and (2) Print version, which can be stored in a binder.
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compensable consequence, continued...

stressThe 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.

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