Wilson en Banc Decision Takeaways

• Citation: Vol. 32 No. 2
• Publication year: 2019
• Author: Brad Wixen, Esq.

Wilson En Banc Decision Takeaways

Brad Wixen, Esq.

Los Angeles, California

On May 10th of this year the Workers' Compensation Appeals Board issued an en banc decision in the case of Kris Wilson v. State of California; Cal Fire (2019) 84 Cal.Comp. Cases 393.

The decision addressed the "catastrophic injury" exception to Labor Code section 4660.1(c)(2)(B). Simply stated, the holding was that the determination of whether an injury is catastrophic is made by evaluating the nature of the injury through a fact-driven inquiry. This is the first time the WCAB has dealt comprehensively with the scope of that exception. This article is a practitioner's takeaways from the decision.

It should be noted that the defendant challenged the en banc decision with its own Petition for Reconsideration, which the WCAB en banc denied on July 15th of this year.

Background

As a practitioner who goes back to 1990, I admit I understand some of the reasoning why the Legislature would have wanted to have limited psychiatric claims. This was a time when few limits existed on obtaining medical treatment. Providers were abusing the system by referring to duplicate subspecialties. Also, it seemed as though in a few cases, adding psychiatric produced little benefit. Something had to be done, but Labor Code section 4660.1, broadly limiting psychiatric injuries that were consequential from a physical injury, at first glance seemed like a sledgehammer.

The question was how to try to ferret out strong psychiatric cases from weak ones. The statute listed various exceptions, but surprisingly, there have been neither appellate direction nor en banc decisions until Wilson. This was a very strong case for the WCAB to issue such a decision in since it covered multiple grounds and had compelling particulars. Before this...