WCAB DEFINES "CATASTROPHIC INJURY"

Kris Wilson was employed as a firefighter by Cal Fire who on May 13, 2014 inhaled fumes and smoke without wearing a breathing apparatus while fighting fires near Lompoc, for which he was subsequently hospitalized several times for breathing and other ailments. He returned to work in April 2015 but was unable to keep pace with his coworkers, and eventually taken off work by his doctor in July 2015. An Application for Adjudication of Claim was filed alleging injuries to lungs, psych, left eye, head and brain (all accepted), as well as heart and circulatory system system (denied).

In a 2017 Findings and Award, the trial judge determined there was no heart injury while otherwise awarding 66% PD. However, the Award excluded any PD for the admitted psychiatric injury because the injury was not caused by an actual separate employment event, but instead was the compensable consequence of the physical injuries.

Labor Code Section 4660.1(c) states there shall be no increase in PD for a psychiatric injury arising out of a compensable physical injury, unless the applicant was a victim of a violent act, or sustained a "catastrophic injury, including, but not limited to loss of limb, paralysis, severe burn, or severe head injury".

The issue in Kris Wilson v. State of CA Cal Fire (2019) is what constitutes a "catastrophic injury" which is otherwise not defined in the California Labor Code. The WCAB determined that "catastrophic" is not determined by how the psychiatric injury occurs but by the results of the injury in which the possible factors to be considered by the trial judge include: 1) Intensity and seriousness of the treatment; 2) Ultimate outcome when the physical injury becomes MMI; 3) Severity of the physical injury and impact on ADLs; 4) Whether the physical injury is similar to the examples in L.C. 4660.1 (i.e. loss of limb, paralysis, severe burn or severe head injury); and 5) If the physical injury is an incurable and progressive disease.

[COMMENT: Given there is already a "violent act" exception which goes to "how" the injury occurred, it then makes sense the "catastrophic injury" exception would pertain to the "consequences" of the accident. Now the battle begins as to how the Wilson factors will be interpreted in cases going forward.]