KRIS WILSON, Applicant,
v.
STATE OF CA CAL FIRE; legally uninsured, adjusted by STATE COMPENSATION INSURANCE FUND, Defendants.
No. ADJ10116932
California Workers Compensation Decisions
Workers’ Compensation Appeals Board State of California
July 15, 2019
(San
Luis Obispo District Office)
OPINION AND ORDER DENYING PETITION FOR
RECONSIDERATION (EN BANC)
KATHERINE A. ZALEWSKI, Chair.
Defendant
seeks reconsideration of the Opinion and Decision After
Reconsideration (En Banc) (hereinafter “Opinion”)
issued by the Workers’ Compensation Appeals Board on
May 10, 2019. By the Opinion, the Appeals Board en banc
rescinded the Findings and Award issued by the workers’
compensation administrative law judge (WCJ) on December 28,
2017, and substituted a new findings of fact and award. In
the substituted findings of fact, the Appeals Board found
that applicant sustained a catastrophic injury pursuant to
Labor Code section 4660.1(c)(2)(B)1 and may receive an increased
impairment rating for his psychiatric injury. The en banc
decision also held that determination of whether an injury is
catastrophic under section 4660.1(c)(2)(B) focuses on the
nature of the injury and is a fact-driven inquiry. The
Opinion outlined five non-exhaustive factors the trier of
fact may consider in evaluating whether an injury is
catastrophic under section 4660.1(c)(2)(B).
In its
Petition for Reconsideration, defendant does not dispute that
applicant sustained a catastrophic injury pursuant to section
4660.1(c)(2)(B) and may receive an increased impairment
rating for his psychiatric injury. However, defendant
contends that the phrase “catastrophic injury” in
section 4660.1(c)(2)(B) refers to the mechanism of injury and
the condition immediately after the injury occurs. Defendant
also contends that the five factors outlined by the Opinion
are not authorized by section 4660.1(c)(2)(B) or legislative
history, and that the Appeals Board exceeded its authority by
promulgating these five factors.2
We
received an unverified answer from applicant. Applicant
requested approval to file a supplemental answer, which we
decline to accept. (Cal. Code Regs., tit. 8, §
10848.)3
We have
considered the allegations of defendant’s Petition for
Reconsideration and applicant’s answer. Based on our
review of the record, for the reasons stated in the Opinion,
which we adopt and incorporate herein, and discussed below,
we will deny reconsideration.4
DISCUSSION
I.
Defendant
contends that the phrase “catastrophic injury” in
section 4660.1(c)(2)(B) refers to the mechanism of injury. We
reject this contention pursuant to the analysis of this issue
in our prior Opinion. (See Wilson v. State of CA Cal
Fire (2019) 84 Cal.Comp.Cases 393, 406-407 (Appeals
Board en banc).)
Defendant
also contends that “catastrophic injury” refers
to the condition immediately after the injury occurs. This
interpretation is not supported by the statute’s
language. Section 4660.1(c)(2)(B) contains no temporal
restrictions on its application. There is nothing in the
statute to indicate that whether an injury is catastrophic
must be determined at a specific time, including immediately
after the injury occurs.
In
support of its interpretation, defendant states: “That
the Legislature gave examples only of injuries that are
immediately catastrophic reveals the intent of the
Legislature was to limit ‘catastrophic’ to those
types of injuries.” (Defendant’s Petition for
Reconsideration, June 4, 2019, p. 5:9-11.) This is in
reference to the specific injuries identified in section
4660.1(c)(2)(B) as catastrophic: loss of a limb, paralysis,
severe burn and a severe head injury.
However,
the statutorily specified injuries may not occur immediately
at the time of an injury. An injured worker could sustain an
injury to a limb that does not immediately result in the
limb’s amputation (i.e., loss of a limb) until a period
of time after the initial injury. An injured worker may not
be immediately paralyzed from an industrial injury, but later
become so as a...
