The Catastrophic Unknown

• Publication year: 2018
• Author: MANAL N. GEORGES, ESQ.

The Catastrophic Unknown

MANAL N. GEORGES, ESQ.

San Jose, California

One of the results of Senate Bill 863 was Labor Code section 4660.1(c)(1), which bars any increase in impairment for claims of sexual dysfunction, sleep dysfunction, or psychiatric disorder arising out of a compensable physical injury occurring on or after January 1, 2013. However, Labor Code section 4660.1(c)(2) allows two exceptions for an impairment due to a psychiatric disorder:

An increased impairment rating for psychiatric disorder shall not be subject to paragraph (1) if the compensable psychiatric injury resulted from either of the following:
(A) Being a victim of a violent act or direct exposure to a significant violent act within the meaning of
Section 3208.3.
(B) A catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.

Violent Act Exception

During the last couple of years the Workers' Compensation Appeals Board has addressed the "violent act" exception in several cases. In Larsen v. Securitas Sec. Servs. (2016) 81 Cal.Comp.Cases 770, the applicant was struck by a car while walking in a parking lot. The Appeals Board held that this mechanism of injury sufficed as a violent act and that the applicant was a "victim of a violent act" within the meaning of Labor Code section 4660.1(c)(2). A violent act is not limited solely to criminal or quasi-criminal activity. It may include other acts that are characterized by strong physical force or extreme or intense force or are vehemently or passionately threatening. Id. at 776.

Another case, Torres v. Greenbrae Management (2017) 82 Cal.Comp.Cases 952, held the applicant was a "victim of a violent act" when the tree branch he was standing on broke, he fell 20 feet, his helmet came off, his head and body hit the tree trunk, and he lost consciousness. In yet another case the applicant was determined to have been the "victim of a violent act" when he swerved the truck he was driving to avoid a collision, the truck rolled on the highway, and the applicant was pinned inside the truck and might have lost consciousness, Madson v. Michael J. Cavaletto Ranches (2017) 45 CWCR 65.

It should be noted that Labor Code section 3208.3(b)(2) provides a "violent act" exception to defenses to psychiatric claims created by SB 899 in 2004. This exception has been around a decade longer than Labor Code section 4660.1(c)(2). There are probably more cases interpreting the violent act exception of Labor Code section 3208.3(b)(2). Those cases may suggest what should qualify as a violent act under Labor Code section 4660.1(c)(2). However, refusing to allow the latter...