Predominant Cause in Psyche 55%S.I./45%C.T (California)

[goldfarb]

The Psyche AME said my client's psyche disability "percentage that is a direct result of the injury arising out of and occurring in the course of employment is 100%." He then goes on to indicate 45% of it is because of the CT (abuse in the work place) and 55% is due to the orthopedic injury.

The predominant cause is the employment. The dates of injury break this us 55%/45%. Can someone shed some light on whether I get all of the disability or only the portion related to the CT?

[stewshe]

goldfarb,

My Work Comp Index, 7th Ed., on page 630 under "Psychiatric Injury, contd.," lists:

..• Actual Events of Employment: Minimum of 10% change, must be due to “actual events
......of employment,” L.C. §3208.3(b), applies to injuries 1-1-90 to 7-15-93; increased to a
......“preponderance of the evidence,” or 51% as to all causes, for injuries o/a 7-16-93;
......CWCLP §6:53; infra, “• Perception of stress,” p637

......▫ Predominant cause, L.C. §3208.3(b)(1), must be met by the overall psychiatric
.........condition: Thus a single psychological component can not qualify if the entire psyche
.........injury doesn’t, Sonoma State (HUNTON) 34 CWCR 218, 71 CCC 1059

I believe the "component" discussed in the second case refers to, e.g., "depression" only which might be ALL due to an injury, but the overall psyche causation could be perhaps only 30% due to employment. Still, it should have some useful language and might help you find other cases more on point?

stew

[stewshe]

Accidental double post....stew

[appliedpsych]

Seems that if the orthopedic injury was industrial, then you have the 100%. Can you describe the specifics of your scenario in more detail ?

Here is a recent ruling that may have a bearing on your case.

Sonoma State University & Octagon Risk Services v. WCAB & Lesley Hunton No. A113590, CA, 8/29/06. Psych Award for 35% Job Causation Annulled 08/30/06. A compensable psychiatric injury cannot be parsed into separately diagnosable components for purposes of satisfying the legal standard in section 3208.3, the California First Appellate District ruled. A psych award given to a Sonoma State University dispatcher whose work-related causation for her disability fell well below the "predominant cause" threshold set out in section 3208.3, the section of law that governs workers' compensation psychiatric injury claims. "The question presented by this case is whether an employee's psychiatric injury meets the threshold for compensability where the entire psychiatric disability is not predominantly work-induced but where one (or more) of several diagnosed psychiatric conditions is entirely (or predominantly) work-induced," the appellate court wrote. Campus police dispatcher Lesley Hunton filed a workers' compensation claim in 2000 alleging an injury to her psyche arising out of and in the course of her employment. Hunton's main complaint was that false fire and burglar alarms in the workplace were causing her stress and anxiety, according to an agreed medical evaluator (AME) who examined her in 2004. The AME opined that for the purposes of apportionment, 65% of Hunton's current psychological disability was attributable to nonindustrial factors and the remaining 35% to industrial factors. Based upon the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the AME who examined Hunton identified the following: Adjustment disorder with mixed emotional features, Dysthymic disorder, Avoidant personality traits. The AME identified the adjustment disorder as "industrially caused." "The issue in contention during the workers' compensation proceedings was whether Hunton had satisfied her burden of establishing a compensable industrial injury, that is, whether she had proven that her psychological injury was predominantly caused by actual events of employment," the appellate court said. The workers' compensation judge found she had met that burden and the Workers' Compensation Appeals Board (WCAB) affirmed the judge's decision. WCAB concluded that even though only 35% of Hunton's permanent disability was work related, she had satisfied the requirement of section 3208.3 because 100% of her adjustment disorder was industrially caused. Sonoma State and Octagon Risk Services argued that Hunton did not meet the predominant causation threshold for compensation eligibility because work-related events had caused only 35 percent of Hunton's overall psychiatric disability. The First Appellate Division disagreed with the trial court and the WCAB decisions. "We hold that a claimant's psychiatric injury satisfies the standard for compensability set forth in section 3208.3 only if it is proven that events of employment were predominant as to all causes combined of the psychiatric disability taken as a whole," the court wrote. The court annulled the award of benefits to Hunton and remanded the matter to the WCAB.

[jobmdpsych]

Sounds like doctor was addressing Benson issues, not nonindustrial apportionment. Unless trier of fact determines work stress not AOE COE you should get all of it. Still predominant cause either way based on physical injury.

[mike@mikeslaw.com]

Looks like you are confusing disbility with causation. Predominent cause goes to what causes injury. You have it for both. The division between injury goes to disability.

[goldfarb]

Thank you all for your comments. Very helpful and looks like I will get all of it.

[vampireinthenight]

I think you had better get some clarification. It sounds like 2 separate and distinct injuries to me. The CT could possibly be barred.