December 29, 2014

No Catastrophic Injury? No Psychiatric PD

by Matthew G. Markham
State: California

For injuries on and after Jan. 1, 2013, there shall be no increase in impairment ratings for the compensable consequence of a physical injury resulting in psyche, sleep, or sexual dysfunction or any combination thereof, an exception thereto being catastrophic injury which includes but is not limited to loss of a limb, paralysis, severe burn, or severe head injury.

Clearly the legislature, in enacting Senate Bill 863, continues the march to restrict psychiatric claims. This should reduce what now appears to be a routine of some physicians who report compensable consequence psychiatric injury, but the Labor Code and regulations are silent as to what constitutes catastrophic injury and, as we all know, this breeds mischief.

What is the reach of restricting indemnity for psychological injuries flowing from physical injuries under SB 863?

Newly enacted Labor Code §4660 1 C (1) states in pertinent part that except as provided in paragraph (2), 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 consequence injury. Nothing in this section shall limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction or psychiatric disorder, if any, that are a consequence of an industrial injury.

A stated exception to the new rule barring increase permanent impairment in compensable psyche injuries flowing from physical injuries is spelled out in Labor Code §4660 1 C (2) which states that an increased impairment rating for psychiatric disorder shall not be subject to paragraph (1) if the compensable psychiatric injuries resulted from either applicant being a victim of violent act or direct exposure to a significant act within the meaning of Labor Code §3208.3 (b) or a catastrophic injury including but not limited to loss of a limb, paralysis, severe burn, or severe head injury.

This newly enacted provision specifically uses the term “catastrophic injury” as opposed to “catastrophic event.”