EXCEPTIONS TO LC 4660.1(c)(1)

In March 2019, Christopher Philippides of our Sacramento office touched upon the “Ongoing Battle for the Add-On Disability” as set forth in Labor Code §4660.1(c). This was brought to us by the California legislature in 2013 by way of SB 863. Encompassed within the Labor Code are the exceptions to this rule, set forth in Sections (c)(2)(A) and (B). Our focus in this Brief is on the vaguely defined exception of “catastrophic injury.”

Within the “Workers’ Compensation Law of California – 2019 Edition,” “catastrophic injury” is referenced twice. The first in CCR §9767.9(e)(2) which notes that, “For purposes of this subdivision, a serious chronic condition is a medical condition due to a disease, illness, catastrophic injury, or other medical problem or medical disorder that is serious in nature and persists without full cure or worsens over 90 days and requires ongoing treatment to maintain remission or prevent deterioration.” This does little to elaborate on, or provide insight into, how to determine a catastrophic injury except that it is a “serious chronic condition.”

Labor Code §4660.1(c)(2)(B) goes slightly further to provide that a catastrophic injury includes, but is not limited to, “…loss of limb, paralysis, severe burn or severe head injury.”

Case law to date has done little to provide practitioners with a definition of “catastrophic injury” until very recently. In May 2019, the Appeals Board in Wilson v. State of California CAL Fire (5/10/19) 2019 Cal.Wrk.Comp.LEXIS 29 (hereinafter “Wilson”) created a list of factors in order to prove a “catastrophic injury.”


In Wilson, the applicant was a firefighter who had battled a wildfire in Lompoc, California. The work caused him to inhale smoke and fumes as the result of not wearing breathing protection. The following day, he went to a hospital complaining of a rash, shortness of breath, nausea, vomiting, low back pain, neck pain, headaches, dizziness, eye discharge, difficulty speaking, and a sore throat. During his hospitalization, Mr. Wilson suffered both renal and respiratory failure. He also suffered “vigorous” tremors. He was intubated, placed on extended oxygen and remained hospitalized for about two weeks before being discharged. Eventually, he was returned to work for a couple of months but was eventually taken off work. He last worked in July of 2015.

The workers’ compensation administrative law judge found that the applicant was entitled to a permanent disability award but excluded impairment for psychiatric injury pursuant to Labor Code §4660.1(c). The applicant sought reconsideration contending psychiatric impairment should have be included because §4660.1(c) does not apply when an injury is catastrophic.


The WCAB notes that the focus of Labor Code §4660.1(c)(2)(B) is the nature of the injury as opposed to the mechanism of injury. This is illustrated by the types of injuries identified. However, the WCAB notes that while the statute identifies specific types of injuries that fall within the exception the statute is not exhaustive since the statue expressly states “including, but not limited to” the enumerated injuries. The WCAB then searches for a way to define “catastrophic injury.” In the end the WCAB conceded that the determination of whether an injury is catastrophic will be a fact-driven inquiry undertaken on a case by case basis.

The first step in determining whether the injury is catastrophic is to remove the psychiatric component from the claim and look solely at the physical injury. The WCAB reasons that Labor Code §4660.1(c)(2) permits an increased impairment rating if the compensable psychiatric injury “resulted from” a catastrophic injury. From there the WCAB gives suggestions as to which factors to consider in order to determine when an injury may be deemed catastrophic. Those factors include, but are not limited to, the following:
1. The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve from the effects of the injury.
2. The ultimate outcome when employee’s physical injury is permanent and stationary.
3. The severity of the physical injury and its impact on the employee’s ability to perform activities of daily living (ADLs).
4. Whether the physical injury is closely analogous to one of the injuries specified in the statute: loss of a limb, paralysis, severe burn, or severe head injury.
5. If the physical injury is an incurable and progressive disease.

The WCAB notes that not all of these factors may be relevant in every case and that the employee need not prove all of these factors apply in order to prove a “catastrophic injury.” Finally, the WCAB notes that the list is not exhaustive, and the trier-of-fact may consider other “relevant” factors regarding the physical injury.


Does the Wilson decision provide a better understanding or ‘Roadmap’ for defendants in predicting the outcome of litigation involving Labor Code §4660.1(c)(2)(B)? Unfortunately, the answer is no. The court was unable to outline a definitive or complete list of variables to consider and opened the door even further for a party to suggest any factor may be “relevant” to defining their specific injury as “catastrophic.”

One may be better served turning their attention back to the definition outlined in CCR §9767.9(e)(2), which explains that the condition must be both serious in nature, and persist without full cure, which requires ongoing treatment to maintain remission or prevent deterioration. When this definition is compared to the list of examples provided including loss of limb, paralysis, severe burns and severe head injury, it is clear that an individual suffering from any of those conditions cannot be made whole, and without ongoing care, is likely to deteriorate. Unfortunately, the argument could be made that any condition resulting in permanent impairment is without full cure, and any condition requiring lifetime medical care, would deteriorate without that care being provided. Therefore, the only factor left to be discerning would be the level of seriousness of that condition.

The ultimately implication here is that whether a condition is “catastrophic” will now be placed into the hands of the fact finder, returning the medical questions to the jurisdiction of the WCAB and outside of the hands of the medical professionals, and more likely than not, this will lead to decisions that are not even across the board, which goes completely contrary to the intent of the legislature when drafting SB 863.

By Aaron Salo, Elliott Castaneda, Linda Bryan and Karly Tabara from Orange Office 7/19/19

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