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Psychiatric Impairment Arising from COVID-19

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As discussed in previous sections, COVID-19 can prompt the filing of psychiatric claims in several ways. For injuries on or after Jan. 1, 2013, Labor Code § 4660.1(c) states that “the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase.” This statute reflects the Legislature's intent as part of Senate Bill 863 to eliminate questionable claims of disability when alleged to be caused by a disabling physical injury arising out of and in the course of employment.

Although there might be an issue whether psychiatric impairment flowing from COVID-19 is compensable under this statute, as discussed in this section, it's likely that it will be compensable most, if not all, of the time. Section 4660.1(c) is discussed in-depth in "Sullivan on Comp" Section 10.16 Use of 2013 Permanent Disability Schedule.

COVID-19 as a Physical Injury

Labor Code § 4660.1(c) bars impairment –– permanent disability –– for a psychiatric, sexual or sleep disorder "arising out of a compensable physical injury." It applies to psychiatric injury only as a compensable consequence of a physical injury. It does not apply to psychiatric injuries directly caused by the employment.[1]

Psychiatric injuries caused by "actual events of employment" (other than physical injuries) pursuant to LC 3208.3(b)(1) would not be barred. So, psychiatric injuries caused by changes in work duties or working conditions due to coronavirus still would be compensable. And post-traumatic stress disorder suffered by hospital workers or other emergency personnel handling COVID-19 patients would not be barred because it does not flow from a COVID-19 diagnosis.

LC 4660.1(c) potentially applies to psychiatric claims only as a consequence of a COVID-19 diagnosis, and it's highly questionable if COVID-19 would constitute a "physical injury" for the purposes of § 4660.1(c). Employers might argue that because COVID-19 causes physical symptoms, it could be considered a "physical injury." The Workers' Compensation Appeals Board has held that industrially related obesity qualifies as physical injury under § 4660.1(c) because it's a physical manifestation, even if it did not arise out of a physical trauma.[2] So, if the court accepts that physical manifestations are enough to satisfy the physical injury requirement, COVID-19 could be considered a physical injury.

The Labor Code, however, differentiates between injuries and diseases. LC 3208 specifies that an injury includes "any injury or disease" (emphasis added). Likewise, § 5412 and § 5500.5 use the terms "occupational diseases or cumulative injuries" (emphasis added). LC 3208.1 defines a cumulative injury as resulting from "repetitive mentally or physically traumatic activities." The courts have distinguished between occupational diseases that require "exposure" and cumulative injuries that require "trauma."[3]

So, because the law recognizes a distinction between injuries and diseases, injured workers might argue that § 4660.1(c) does not apply to psychiatric injuries flowing from COVID-19, because COVID-19 is a disease not a physical injury.

Limitation Applies Only to Permanent Impairment

Even if COVID-19 is considered a physical injury, LC 4660.1(c) precludes only permanent impairment. It expressly states that it does not limit the ability of an injured employee to obtain treatment for a psychiatric disorder that is a consequence of a physical injury. It also does not limit an employee's ability to receive temporary disability benefits.[4]

Exceptions to the Bar on Permanent Impairment

Even if COVID-19 is considered a physical injury under Labor Code § 4660.1(c)(1), LC 4660.1 (c)(2) allows an employee to receive an increased impairment rating for psychiatric injury flowing from a physical injury if the psychiatric injury resulted from either:

  1. being a victim of a violent act or being directly exposed to a significant violent act; or
  2. a catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn or severe head injury.

In Wilson v. State of CA Cal Fire,[5] the appeals board en banc held that the first exception focuses on the mechanism of the injury, and the second on the nature of the injury. In that case, the appeals board defined a "violent act" per § 4660.1(c)(2)(A) as "an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening." The board held that a firefighter who fought a wildfire for several hours, during which time he had prolonged exposure to fumes and smoke causing an adverse physical reaction in multiple body parts, did not sustain an injury that resulted from a violent act.[6]

Because COVID-19 is passed insidiously from person to person, it will be difficult for employees to establish the first exception. Short of contracting COVID-19 after being attacked by someone who has the disease, it's unlikely that psychiatric injury resulting from COVID-19 exposure would qualify as a violent act.

But COVID-19 might be a "catastrophic injury." Although most people have minor or moderate symptoms and fully recover from COVID-19, some people with the disease might have permanent lung damage. In Wilson, the appeals board concluded that the firefighter's injury was catastrophic when the evidence established that his injury was serious and life-threatening, he was placed in a medically induced coma, he suffered both renal and respiratory failure and his physical injury resulted in permanent disability that rated at 66%.[7]

So it's foreseeable that even if COVID-19 is considered a physical injury under § 4660.1(c)(1), some employees will be able to receive impairment for a psychiatric injury flowing from it, if their illness results in significant hospitalization and permanent impairment. It would depend on the facts for each case.

See Also

References

  1. Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393, 403.
  2. Castillo v. City of Los Angeles (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 58.
  3. See Fruehauf Corp. v. Workers' Comp. Appeals Bd. (1968) 68 Cal. 2d 569, 576 (Supreme Court defining cumulative injuries based on "traumas which are minor" and occupational diseases based on "exposure to harmful substances").
  4. Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393, 403.
  5. (2019) 84 Cal. Comp. Cases 393.
  6. Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393, 405-406.
  7. Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393, 415-416.



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