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November 16, 2022

By Ani Baghdassarian

In Sosa v. Race Engineering, Inc., Insurance Company of the West, the workers’ compensation applicant was injured while loading a heavy ice machine that tilted and fell toward him, causing him to raise his right hand to get out of the way. His injury was accepted for the right hand, and denied for psyche, internal system, skin, gastrointestinal system and sleep. He disputed that decision.

His psyche treater had diagnosed an adjustment disorder and pain disorder with the predominant cause attributed to the injury. A subsequent psyche treater diagnosed the applicant with major depressive disorder, generalized anxiety disorder, simple phobia, PTSD and insomnia, but did not address the cause.

The psyche panel qualified medical evaluator (PQME) declared the applicant to have reached maximum medical improvement, assigned a global assessment of function (GAF) score of 58 and diagnosed depressive disorder. Causation was 70% to right hand pain, 20% to left hand pain and 10% to headaches.

The ortho PQME found injuries to the right index and middle fingers, causing 4% whole person impairment (WPI) for the right hand, plus an additional 3% WPI for pain.

Trial Judge Finds Psyche Compensable Consequences of Hand Injury

The case went to trial on the disputed body parts/conditions as well as whether psyche permanent disability was a compensable consequence of the right hand injury.

Labor Code section 4660.1(c)(1) prohibits an increase in permanent disability for sleep dysfunction, sexual dysfunction and/or psyche disorder arising out of a compensable physical injury. The only two exceptions, under Labor Code section 4660.1(c)(2) are, (1) being “a victim of a violent act or direct exposure to a significant violet act,” and (2) a catastrophic injury, “including, but not limited to, loss of limb, paralysis, severe burn or severe head injury.” There is no bar to psyche impairment if the psyche injury was directly caused by events of employment.

The trial judge found injury to the right hand, psyche and sleep, and awarded 10% permanent disability for only the hand. The judge opined that psyche and sleep were compensable consequences of the right hand injury, thereby barring permanent disability for psyche and sleep.

The applicant filed a Petition for Reconsideration, arguing that his psyche injury was directly caused by the hand injury and entitling him to permanent disability. In the alternative, he argued his psyche injury was the result of a violent act. The trial judge recommended denial of the Petition.

WCAB Denies Petition for Reconsideration

The WCAB denied the applicant’s Petition, affirming the trial judge’s decision.

Regarding the applicant’s allegation that his psyche injury was directly caused by the events of employment, the WCAB stated that the applicant’s psyche treaters never put forward the opinion that the psyche injury was caused directly by the events of employment. The psyche PQME’s report supported the trial judge’s decision that the applicant’s psyche injury was a compensable consequence of the right hand injury, not a direct psyche injury.

Regarding the applicant’s allegation that his psyche injury falls under the violent act exception, the WCAB relied on Wilson, which defined a violent act as, “an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.” Evaluation on whether an injury resulted from a violent act focuses on the mechanism of injury.

The WCAB found the applicant’s mechanism of injury was not a violent act. The force of the ice machine falling was not an extreme or intense act and not vehemently or passionately threatening, such as being struck by a car, falling from a tree, being struck in the head multiple times or being pinned and crushed in a truck (relying on Larsen, Torres, Garcia, Madson and Ugalde).

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