Wilson: A Firefighter Survived. Was the Injury “Catastrophic”?

You survive a terrible injury at work. The doctors accept that it left you with post-traumatic stress. Then the rating comes back and the psychiatric part counts for nothing. Since 2013, California has generally barred a psychiatric condition that grows out of a physical injury from raising the permanent disability rating. The law keeps an exception for a “catastrophic injury.” It never defines the term, offering only four examples.

A trial judge in Kris Wilson’s case said he could only know it when he saw it. The Workers’ Compensation Appeals Board answered in Wilson v. State of California, Cal Fire, 84 Cal.Comp.Cases 393, No. ADJ10116932 (WCAB en banc May 10, 2019), a decision every workers’ compensation judge must follow. The question turns on the nature of the physical injury, and on the facts of each case. A worker does not need a limb amputated, a total disability or any minimum rating. Wilson won that finding. The final rating, including what the psychiatric injury would add and whether apportionment would reduce it, stayed for the trial judge.

A wildfire and two weeks in the hospital

On May 13, 2014, Wilson, a firefighter with Cal Fire, reported to a wildfire in Lompoc. He worked the drainage area for hours, until about 8:00 the next morning, breathing fumes and smoke without a breathing apparatus.

On May 15 he went to an emergency room with a rash and shortness of breath, among other symptoms. His condition worsened, with ulcers in his mouth and throat. He was admitted to intensive care at Antelope Valley Hospital, where the records describe renal failure, respiratory failure requiring intubation and acute respiratory distress syndrome. He came off the ventilator on May 29 and went home on June 1. One evaluator described that syndrome as “a life-threatening condition involving the lungs that impairs gas exchange.”

He tried to go back. In April 2015 he returned to firefighting, but he “was unable to keep pace with his coworkers,” and he last worked in mid-July 2015. Three medical-legal evaluators concluded he could not return to the job. He was 28 years old when he was hurt.

The nightmares came too. Wilson told psychologist Joseph Walsh that he had a “vivid memory of waking up while he was intubated,” relived in a recurring nightmare two to three times a week. Dr. Walsh diagnosed post-traumatic stress disorder and a severe major depressive disorder, and assigned 36 percent whole person impairment, the medical percentage that is later converted into a disability rating.

The PTSD was accepted. The rating left it out.

The State accepted the injury to his psyche. On that injury, it disputed only whether it could add to his permanent disability. The judge’s rating instructions did not ask for a psychiatric rating. The result was 66 percent.

The judge found no catastrophic injury. The statute’s examples, he wrote, have “exceptionally grave consequences,” but so do many injuries. He borrowed Justice Stewart’s line, “I know it when I see it,” and drew this distinction: “It is not the consequences of an injury that are catastrophic but the injury itself.”

Wilson asked the Board to reconsider. The Board’s answer tested each way around the bar, one at a time.

One statute and two doors

Labor Code section 4660.1(c), added by the 2012 reform bill SB 863, applies to injuries on or after January 1, 2013. Its reach is narrower than it first looks, and the Board spelled that out. The worker can still claim the psychiatric injury. The worker can still get treatment and temporary disability for it. The bar stops only one thing, and the worker carries the burden of getting past it: an increase in the permanent impairment rating for a psychiatric injury that is a compensable consequence of a physical injury.

That leaves two ways out. The first is to show the psychiatric injury was not a consequence of the physical injury at all, because the events of employment caused it directly. The second is to stay inside the bar and fit an exception: a violent act or a catastrophic injury. Wilson tried both.

His fear came from the hospital, not the fire

A compensable consequence is a second injury to which the first injury contributed, even in part. The Board’s example was a carpenter whose double vision from a work injury led him to cut off a finger at home. The first injury was direct. The second was reached through the first.

Wilson argued that his psychiatric injury came straight from fighting the fire. The words of the psychological evaluator, whose reports Wilson put in evidence, stood in the way. Dr. Walsh wrote that the PTSD “arose out of the effects of and treatment for a compensable physical injury.” He tied the depression mostly to the untreated PTSD. He had also called the PTSD “due to the direct effects” of the injury, but the Board’s analysis rested on his history and his other causation opinions: His fears centered on the hospitalization and on what the physical injury might still do to him, not on the fire. So his psychiatric injury was a compensable consequence, and the bar applied.

The lesson is uncomfortable. A worker can be devastated by what happened at work, and the rating can still turn on how a psychological report traces the cause. The Board said evaluators must specify whether a psychiatric injury is directly caused by events of employment or is a compensable consequence of the physical injury.

Smoke was not a violent act

The violent-act exception looks at how the injury happened. The Board drew on panel decisions that define a violent act as one marked by strong physical force, by extreme or intense force, or by being vehemently or passionately threatening. Hours of fumes and smoke did not fit.

That contrast drove the rest of the opinion. The violent-act exception speaks of an “act,” so it looks to the mechanism. The catastrophic exception speaks of an “injury,” and its four examples, loss of a limb, paralysis, severe burn and severe head injury, all describe a result. That is why the focus falls on the nature of the injury, however it came about.

The definitions the Board rejected

The statute says “including, but not limited to,” so the list is not the limit. The Board needed something else to measure by, and it tried several candidates.

A dictionary came first. The American Heritage definition speaks of a serious injury with a long period of incapacity and often high treatment costs. Too broad, the Board said. How long is long? What is high? Those facts may be relevant, but they cannot decide the question.

Two other California statutes define “catastrophic” illness or injury, for programs that let public employees donate leave. Those definitions were built for that purpose. An injury expected to incapacitate someone for an extended time would sweep in far too much, given what the Legislature was trying to do here. SB 863 declared an intent “to eliminate questionable claims of disability” while guaranteeing treatment.

Earning capacity came last. Some jurisdictions define catastrophic injury as total disability. The Board refused. A single injury cannot rate above 100 percent. If only a totally disabled worker could use the exception, the exception would add nothing. Nor could it set a minimum rating. The statute’s own examples vary too widely. An above-knee amputation may carry 40 percent whole person impairment and an amputation at the shoulder 60 percent, which the statute multiplies by 1.4 to reach 56 and 84 before age and occupation are counted. The Legislature could have written in a floor. It did not.

Five things a judge may look at

The Board concluded that whether an injury is catastrophic is a fact-driven inquiry, and it listed factors a judge may consider:

• The intensity and seriousness of the treatment reasonably required.
• The ultimate outcome when the physical injury is permanent and stationary, meaning it has stabilized.
• The severity of the physical injury and its effect on activities of daily living.
• Whether the injury is closely analogous to the statute’s examples.
• Whether the injury is an incurable and progressive disease.

Not every factor will matter in every case, a worker need not prove them all, and judges may consider others. As we read it, the second and third factors cannot be squared with the trial judge’s distinction. Consequences count. The judge should also keep in mind the legislative intent behind the bar, the Board added.

One limit is built in. The statute requires that the psychiatric injury “resulted from” a catastrophic injury, so the Board looks solely at the physical injury. A devastating psychiatric aftermath cannot make a modest physical injury catastrophic. Dr. Walsh’s view that the psychological injury itself was catastrophic could not carry the point, and the Board said it did not consider Wilson’s psychiatric symptoms in assessing daily living. Separately, the worker must still prove that actual events of employment were the predominant cause of the psychiatric injury, meaning more than 50 percent. For this purpose the physical injury itself counts as an actual event of employment. Wilson met the requirement through Dr. Walsh’s reporting, and the State had stipulated to the injury to his psyche.

Why Wilson’s injury qualified

The Board went through the hospital and evaluator reports and reached the finding itself. His first treatment was “serious and life-threatening”: a medically induced coma, renal and respiratory failure, intubation and about two weeks in the hospital.

The injury lasted. The physical injury alone produced permanent disability in his lungs and left eye, along with headaches and neurological problems with memory and thinking, that combined to 66 percent. Evaluators consistently reported complaints of fatigue, shortness of breath, weakness, trouble lifting and difficulty walking long distances or running. He was diagnosed with impaired memory and sleep problems, and his vision suffered. The Board found this substantially affected his activities of daily living. It had “essentially been career-ending” for a 28-year-old. The Board had refused to make lost earning capacity the test, but it still counted the end of his firefighting career among the injury’s lasting effects. It rested its finding on two things, the intensive treatment and the lasting impact of the injury, and said nothing about analogy or incurable disease. This was “not the type of questionable claim of disability” the Legislature meant to shut out. The Board rescinded the award and entered its own finding that he sustained a catastrophic injury and may receive an increased psychiatric rating.

The State’s second try

The State asked for reconsideration even though it did not dispute that Wilson’s injury was catastrophic. It wanted the rule changed. In an order filed July 15, 2019, the Board, again sitting as a full board, denied the petition.

The State argued that “catastrophic” refers to how the injury happened and to the condition immediately after the accident, because the listed injuries are immediate. The Board rejected the first point by relying on its May analysis, and it rejected the second on both the text and the premise. The statute has no timing limit. And the examples are not always immediate: A damaged limb may be amputated later, and paralysis may develop after the injury. There was a further problem. When an accident instantly severs a limb, the resulting psychiatric injury may be direct, and then the bar never applies. The State’s reading blurred that line.

The State also argued that the Board had exceeded its authority by creating the factors, in effect an improper rule, and that most of them would expand psychiatric add-ons again. The Board answered that they are an analytical framework, which a judge is not required to use, and it saw no basis for the prediction. It also warned that citing a subscriber-only article never put in evidence, without seeking judicial notice, can bring sanctions.

What the win did, and what stayed open

The win opened a door. The 66 percent award itself was rescinded, and the Board deferred permanent disability and apportionment and sent the case back. Apportionment, the assignment of part of a disability to non-work causes, was live. The Board flagged in footnotes that the trial judge had never explained why he did not apply an evaluator’s finding that half of the pulmonary hypertension came from non-work allergies, or the 20 percent nonindustrial share of the asthma. Dr. Walsh’s report left another question for the judge: whether the 10 percent of psychiatric impairment he tied to Wilson’s reaction to losing his career was also an actual event of employment.

Timing can be its own issue. In Perez v. Raley’s Fine Foods, No. ADJ10274049 (WCAB July 25, 2022), the trial judge found no catastrophic injury and refused an evaluator from the state’s psychiatric panel. A Board panel held it was premature to decide the catastrophic question while permanent disability was still deferred, because the “ultimate outcome” was not yet known. Citing the liberal scope of discovery, it ordered the evaluation, reasoning that the evaluation could shed light on direct injury and temporary disability, and that any psychiatric permanent disability would be ready to rate if the injury later qualified. It expressed no view on the final outcome. Wilson itself found a catastrophic injury while deferring permanent disability. As we read the two decisions, the difference is that Wilson’s physical injury had already been evaluated and rated at 66 percent, while the Perez panel treated the ultimate outcome as still undetermined.

Building this claim

These are our practical takeaways from Wilson and Perez.

• Read the causation sentence in the psychological report. The report should say whether the psychiatric injury came directly from the work events or from the physical injury, and why. The Board read the evaluator’s history and causation opinions together to decide that issue in Wilson.
• Make the physical record carry the weight. Keep the hospital records, including the length of any intensive care, intubation or surgery. The judge is looking at the physical injury, without the psychiatric symptoms.
• Document daily life, and separate the causes. The Board relied on evaluators’ consistent reports of what Wilson could no longer do. The AMA Guides’ activities of daily living include self-care, physical activity, travel and sleep. Keep limits caused by the physical injury distinct from those caused by the psychiatric one.
• Press the analogy when it helps. Compare the injury with loss of a limb, paralysis, a severe burn or a severe head injury, using medical detail rather than adjectives.
• Ask for the psychiatric evaluation even if the catastrophic question is undecided. Perez allowed one on discovery grounds while that question was deferred.
• Expect apportionment to remain. Winning the catastrophic finding does not resolve what share of each impairment the work injury caused.

For representation in a dispute over a psychiatric rating or permanent disability, see our California workers’ compensation practice.