Labor Code Section 4660.1(c)(1) and Its Enigmatic Exception
I recently resolved a case involving a health care worker’s exposure to the measles virus during the course of her usual and customary work activities. It caused rather substantial neurological impairments. The neurologic injuries were accepted.
Numerous Panel Qualified Medical Evaluations in various specialties including neurology, internal medicine, psychiatry, and neuro-psychology were obtained throughout the course of this claim, as well as sleep studies.
Over the course of the discovery process, we were able to eliminate many of these specialties, finally narrowing the scope of the applicant’s alleged impairments to the neurological condition and the claim for psychiatric injuries. The findings of the Panel Qualified Medical Evaluator in neurology were rather reasonable given the substantial neurological symptoms, including syncope, loss of balance, blurred vision and hearing impairment. The Psychiatric Panel Qualified Medical Evaluation found substantial additional permanent disability.
Given the 2013 date of exposure, we immediately argued that no additional permanent disability should be found for the psychiatric impairment or the sleep dysfunction pursuant to Labor Code Section 4660.1(c)(1).
Applicant’s attorney attempted to argue that given the substantial neurological condition and symptoms involving the applicant's loss of balance, blurred vision and alleged memory loss, applicant's condition fell within the exception to Labor Code Section 4660.1(c)(2)(B): applicant's measles exposure and subsequent neurological conditions were a “catastrophic injury” along the lines of a severe head injury. Therefore, the main issue arising out of this case came down to what exactly was a catastrophic injury to invoke the exception barring additional psychiatric permanent disability for a compensable physical injury as outlined in Labor Code Section 4660.1(c)(1).
WHAT IS A CATASTROPHIC INJURY WITHIN THE MEANING OF LABOR CODE SECTION 4660.1(c)(2)(B)?
The WCAB has attempted to define a catastrophic injury, but with difficulty we know that each alleged catastrophic injury situation should be dealt with on a case-by-case basis when appropriate.
The Board had applied the catastrophic injury exception to Labor Code Section 4660.1(c)(2)(B) to a severe mangling injury in the case of Guerrero v. Ramcast Steel Fabrication (2017) 82 Cal. Comp. Cases 1222 (Guerrero), wherein which Mr. Guerrero's hand was crushed in a hydraulic press causing severe injury and mangling of the applicant's upper extremity resulting in partial amputation.
The Guerrero case relied on the legislature's intent that the catastrophic exception involve a severe physical injury of a force or immediate threat of force or bodily harm or pain or discomfort resulting in a disabling condition.
In our particular case involving exposure to an infectious disease, the applicant was unaware of the measles exposure for some three weeks after the actual exposure when she was notified by the Health Department that she may have come in contact with an individual carrying the measles virus. Therefore, there was no immediate threat perceived by the applicant at the time of the exposure.
Furthermore, the case did not involve an actual blunt force trauma or actual physical impact to the applicant's head area as explored by the Board in numerous automobile accident claims resulting in a severe head injury. Indeed, the applicant in this particular case had no idea that she may have been harmed neurologically or otherwise until sometime after the actual measles exposure.
Although the symptoms applicant would eventually experience in the form of dizziness, loss of balance, blurred vision, and hearing loss would eventually result in a compensable physical impairment, she was able to continue performing her work duties well after the actual day that she became exposed to the measles virus. Therefore, the injury was not “sudden” under Labor Code Section 3208.3; nor was it “extraordinary”, as one could easily foresee a health care worker dealing with sick patients eventually contracting one of their patient’s ailments.
Although no cases could be located which were clearly on point, it was our conclusion that there was no intent by the legislature to apply the catastrophic injury exception to cases where the individual was completely capable of continuing their work activities and participating in daily living activities without restriction or impairment and without overt signs of disability immediately after the alleged catastrophic injury.
Clearly, throughout my research of applicable case law on the issue, the legislative intent in enacting both Labor Code Section 4660.1 (c)(1), as well as Labor Code Section 3208.3, was to establish a new and higher threshold of psychiatric compensability as the result of a compensable physical injury. At the same time, the legislature provided the injured worker with access to medical treatment for the alleged psychiatric consequence while precluding any additional psychiatric permanent disability.
In this particular case, the matter was eventually resolved based upon the neurological impairment found by the Panel Qualified Medical Evaluator in neurology with a reasonable amount of additional sums contributed to potential future psychiatric treatment.
In summary, the catastrophic injury exception to Labor Code Section 4660.1(c)(1) must be evaluated on a case-by-case basis. Although this particular individual in the above referenced case did perceive her subsequent neurological condition and impairment and related physical complications to be catastrophic, a question still remains as to whether or not this type of infectious disease exposure was contemplated by the legislature to be an exception to the rule barring additional permanent disability as the result of a compensable physical injury under Labor Code Section 4660.1(c)(1).
There is still a gray area as to the definition of “catastrophic” under Labor Code Section 4660.1(c)(2)(B) and whether it refers to the mechanism of injury or the eventual effects on the applicant’s wellbeing or both, or even other factors not yet explored. Therefore, in evaluating these types of injuries and their impact as to the injured worker’s physical being and activities of daily living, one must closely evaluate the actual physical injury and subsequent impact on the applicant’s physical condition on a case-by-case basis.
I will continue to research cases which may be more directly on point with these particular facts and welcome comments or contributions from anyone who has encountered this type of factual situation involving exposure to an infectious disease and the psychiatric impact to that exposure.
W. Robert Siefkes is a partner at Bradford & Barthel, LLP. He practices in Redding and surrounding areas. With over a quarter century of workers’ compensation defense experience, Mr. Siekes welcomes your questions. He can be reached at firstname.lastname@example.org or (530) 242-6909.