What the panel ordered
Petitions for reconsideration granted; WCJ's decision of August 6, 2024 rescinded; case returned to trial level for further development and decision consistent with en banc decision in Vigil v. County of Kern (2024).
Petitions for reconsideration filed by applicant and defendant regarding WCJ's Findings and Award and Order of August 6, 2024; WCJ's decision rescinded and matter returned to trial level for further proceedings and decision.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCJ included psychiatric permanent disability in the overall permanent disability calculation under the violent act exception, but the Appeals Board found the record needed further development and reanalysis in light of the en banc decision in Vigil v. County of Kern (2024).
From the decision · page 1Applicant and defendant have filed separate petitions for reconsideration with regard to a workers' compensation administrative law judge's (WCJ) Findings and Award and Order of August 6, 2024, wherein it was found that while employed on May 13, 2015 as a foreman, applicant sustained industrial injury to the head, eyes, vision, face, jaw, chin and mouth causing permanent disability of 70%. It was also found that "the violent act exception [to not including psychiatric permanent disability as a compensable consequence to a physical injury] applies pursuant to Labor Code section 4660.1(c)(2)(A)." Although there was no finding of psychiatric injury, psychiatric permanent disability was included in the calculation of overall permanent disability.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ included psychiatric permanent disability in the overall permanent disability calculation under the violent act exception.
Favours Applicant prevailed
This inclusion was contested and led to the Appeals Board granting reconsideration and remanding the case for further development and reanalysis.
From the decision · page 1Applicant and defendant have filed separate petitions for reconsideration with regard to a workers' compensation administrative law judge's (WCJ) Findings and Award and Order of August 6, 2024, wherein it was found that while employed on May 13, 2015 as a foreman, applicant sustained industrial injury to the head, eyes, vision, face, jaw, chin and mouth causing permanent disability of 70%. It was also found that "the violent act exception [to not including psychiatric permanent disability as a compensable consequence to a physical injury] applies pursuant to Labor Code section 4660.1(c)(2)(A)." Although there was no finding of psychiatric injury, psychiatric permanent disability was included in the calculation of overall permanent disability.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Report of psychologist Dennis Gardner, PhD, was contested by defendant for not being listed on the pretrial conference statement and for improper impairment code use in migraine permanent disability calculation.
From the decision · page 1Applicant contends that the WCJ erred in finding only 70% arguing that applicant's permanent disability should have been calculated by adding applicant's neurological impairment to the ophthalmological, dental, and psychiatric impairments rather than by using the combined values table. Defendant contends in its Petition that the WCJ erred in including psychiatric permanent disability, arguing that the August 19, 2022 report of psychologist Dennis Gardner, PhD was not listed on the pretrial conference statement, and thus should not have been admitted into the evidentiary record, and an improper impairment code was utilized in calculating applicant's migraine permanent disability. Defendant also contends that "psych is not an issued listed on the Pre-Trial Conference Statement." Defendant has filed an Answer to Applicant's Petition and the WCJ has filed a Report and Recommendation on Petition for Reconsideration
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4660.1(c)(2)(A)
Violent act exception to psychiatric permanent disability inclusion under Labor Code section 4660.1(c)(2)(A)
The WCJ applied this exception to include psychiatric permanent disability in the overall permanent disability calculation.
From the decision · page 1Applicant and defendant have filed separate petitions for reconsideration with regard to a workers' compensation administrative law judge's (WCJ) Findings and Award and Order of August 6, 2024, wherein it was found that while employed on May 13, 2015 as a foreman, applicant sustained industrial injury to the head, eyes, vision, face, jaw, chin and mouth causing permanent disability of 70%. It was also found that "the violent act exception [to not including psychiatric permanent disability as a compensable consequence to a physical injury] applies pursuant to Labor Code section 4660.1(c)(2)(A)." Although there was no finding of psychiatric injury, psychiatric permanent disability was included in the calculation of overall permanent disability.
What proof carried it
The evidence the panel weighed, by kind.
Report of psychologist Dennis Gardner, PhD, not listed on pretrial conference statement and improper impairment code used for migraine permanent disability
From the decision · page 1Applicant contends that the WCJ erred in finding only 70% arguing that applicant's permanent disability should have been calculated by adding applicant's neurological impairment to the ophthalmological, dental, and psychiatric impairments rather than by using the combined values table. Defendant contends in its Petition that the WCJ erred in including psychiatric permanent disability, arguing that the August 19, 2022 report of psychologist Dennis Gardner, PhD was not listed on the pretrial conference statement, and thus should not have been admitted into the evidentiary record, and an improper impairment code was utilized in calculating applicant's migraine permanent disability. Defendant also contends that "psych is not an issued listed on the Pre-Trial Conference Statement." Defendant has filed an Answer to Applicant's Petition and the WCJ has filed a Report and Recommendation on Petition for Reconsideration
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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