California WCABPanel decision

ADJ12447782 · May 22, 2023

Petition for reconsideration granted; Findings and Award and Order of March 1, 2023 affirmed with amendments; matter returned to trial level for further proceedings.

Issues decided: 4
Medical opinions weighed: 2
Authorities named: 3
District office: Los Angeles

What the panel ordered

Petition for reconsideration granted; Findings and Award and Order of March 1, 2023 affirmed with amendments; matter returned to trial level for further proceedings.

Applicant sought reconsideration of the Findings and Award and Order issued on March 1, 2023; the WCAB granted reconsideration, affirmed the F&O with amendments, and returned the matter to the trial level for further proceedings.

Read the official decision →

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Sanctions under Labor Code §5813Applicant prevailed

Medical treatment / UR / IMRApplicant prevailedright hand · right index finger · right middle finger · right ring finger · right elbow · right shoulder · psyche

Applicant is entitled to further medical treatment to cure and/or be relieved from the effects of the industrial injury.

Permanent disability ratingApplicant prevailed

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The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant's psychiatric injury was found to be compensable but the exact causation percentages between direct injury and compensable consequence were not established due to lack of testimony and evidence.

Favours neutral

This lack of evidence led to deferral of the issue of whether Labor Code section 4660.1 applies and whether an increased impairment rating is warranted.

From the decision · page 8Here, the record does not contain medical evidence regarding what percentage of applicant's psychiatric injury was directly caused by the April 5, 2019 incident and what percentage was a compensable consequence of her physical injury. More significantly, applicant did not testify at trial as to her symptoms or explain how her injury occurred. (See Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Bd. en banc).) Consequently, we are unable to determine the preliminary issue of whether section 4660.1 applies. Thus, we cannot reach the issue of whether applicant may be entitled to an increased impairment rating under section 4660.1 because her psychiatric injury resulted from her being a victim of a violent act or a catastrophic injury.

Applicant returned to work full time and performs tasks independently, indicating no catastrophic injury.

Favours Defendant prevailed

This supported the WCJ's conclusion that the injury was not catastrophic, affecting the issue of increased impairment rating.

From the decision · page 6Similarly applicant's argument she is entitled to an increase in permanent disability impairment because her psychological disability was caused by a catastrophic injury is not supported by the facts or the medical evidence. Neither the primary treating physician nor the Panel Qualified Medical Examiner suggest applicant sustained a catastrophic injury. The applicant has returned to work and continues to work with restrictions. Dr. Yassi Zarrin report states applicant is working full time, she continues working around the same machine that caused the injury, and she is able to drive and does all of her tasks independently. (See Joint Exhibit 1, page 17). (Report, pp. 1-3.)

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

QMERelied upon · Psychology

Applicant's psychiatric injury predominantly related to the work events of April 5, 2019, and is a compensable consequence of her orthopedic injury; however, the exact percentage of direct causation versus compensable consequence was not specified.

Dr. Zarrin opined the psychiatric injury was predominantly caused by the work injury but did not specify the percentage directly caused by the incident versus compensable consequence of the physical injury, leading to deferral of the issue.

From the decision · page 7In this case, the psychiatric QME Dr. Zarrin concluded that applicant's psychiatric injury was predominantly related to the work events that occurred on April 05, 2019, and, therefore, that her psychiatric injury is compensable pursuant to section 3208.3. (Ex. 1, PQME PSYD Report, Yassi Zarrin Psy.D. February 28, 2022, pp. 13, 28, 29, 30, 31.) In so doing, Dr. Zarrin observed that applicant "suffered symptoms of apathy, irritability, despondency, and problems with sleep as a result of her work injury... ongoing pain." (Id., p. 30.) However, although he used the term "compensable consequence" in opining that actual events of employment predominantly caused applicant's psychiatric injury, Dr. Zarrin did not explain which of applicant's symptoms were directly caused by the April 5, 2019 incident and which were a compensable consequence of her physical injury. (Ex. 2, PQME Supplemental Report, Yassi Zarrin, Psy.D., June 15, 2022, pp. 3- 5.) Notably, Dr. Zarrin did not state what percentage of applicant's injury was directly caused by the April 5, 2019 incident and what percentage was the compensable consequence of her physical

secondary_treaterPartially credited · Psychology

Provided psychotherapy to applicant; noted applicant had returned to work full capacity and was living an active lifestyle despite emotional difficulties from work injury.

Referenced in the psychological injury discussion as treating psychologist providing psychotherapy.

From the decision · page 4the applicant had commenced employment with Smithfield Corporation in September 2018. At the time of my initial evaluation, I conducted a thorough clinical interview, administered psychological testing, and reviewed records that were provided to my office. Based on this information, I opined that the claimant met criteria for diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood Chronic. I assigned a GAF of 62, which equated to a Whole Person Impairment of 12%. the applicant was referred to the office of Dr. Nelson Flores for psychotherapy. At the time of my evaluation, the applicant had returned to work in full capacity. She was living an active and productive lifestyle. While she had been affected emotionally by her work injury he claimant stated that she was trying to focus on moving forward and improve her future.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 3208.3

An employee must demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury to establish compensability.

Applied to determine compensability of applicant's psychiatric injury.

From the decision · page 6(1) In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury.

Labor Code section 4660.1

Section 4660.1(c) bars an increase in permanent impairment rating for psychiatric injury that is a compensable consequence of a physical injury occurring on or after January 1, 2013, except for injuries due to violent acts or catastrophic injuries.

Considered in deferring the issue of increased impairment rating for psychiatric injury.

From the decision · page 7Section 4660.1(c) bars an increase in an injured worker's permanent impairment rating for a psychiatric injury that is a compensable consequence of a physical injury occurring on or after January 1, 2013. However, an injured worker may receive an increased impairment rating for a compensable consequence psychiatric injury if the injury that the psychiatric injury resulted from is due to: (1) being a victim of a violent act or direct exposure to a significant violent act, or (2) a catastrophic injury. (Section 4660.1(c)(2).)

Wilson v. State of CA Cal Fire (2019) 84 Cal.Comp.Cases 393

The psychiatric injury must be predominantly caused by actual events of employment, meaning more than 50 percent causation, for compensability under section 3208.3(b)(1).

Applied to interpret predominant causation for psychiatric injury compensability.

From the decision · page 7"Predominant as to all causes" for purposes of section 3208.3(b)(1) has been interpreted to mean more than 50 percent of the psychiatric injury was caused by actual events of employment. (Dept. of Corr. v. Workers' Comp. Appeals Bd. (Garcia) (1999) 76 Cal. App. 4th 810, 816 [90 Cal. Rptr. 2d 716, 64 Cal.Comp.Cases 1356].) This predominant causation threshold applies to psychiatric injuries pled as a compensable consequence of a physical injury. (Lockheed Martin Corp. v. Workers' Comp. Appeals Bd. (McCullough) (2002) 96 Cal.App.4th 1237, 1249 [117 Cal. Rptr. 2d 865, 67 Cal.Comp.Cases 245].) The Court of Appeal in McCullough opined that for a compensable consequence psychiatric injury, "the precipitating physical injury constitutes an 'actual event[] of employment' within the meaning of [section 3208.3(b)(1)]." (Id.)