ADJ11250045 · November 27, 2023

Applicant's psychiatric injury was found to be predominantly caused by the orthopedic injury, and not by a violent act; thus, Labor Code section 4660.1(c)(1) precludes a permanent disability rating for the psychiatric injury.

From the decision · page 11I find that applicant did sustain a psychiatric injury and is entitled to future treatment for it, but he is not entitled to an increase in rating by reason of the fact that his psychiatric injury was predominantly caused by the orthopedic injury, and the Labor Code precludes a rating for psychiatric injury caused by the physical injury to the left wrist. I find both Dr. Dorsey's and Dr. Lee's opinions as to industrial psychiatric injury to be adequately supported and substantial in regard to causation, but I find Dr. Lee's report to be more persuasive on the need for further medical treatment. Neither report supports a rating for disability impairment by reason of the psychiatric injury, insofar as the psyche injury was predominantly caused by a physical injury, and thus a rating is precluded per LC 4660.1(c)(1).

Applicant's psychiatric injury was caused by the loss of his career as a correctional officer due to physical limitations from the orthopedic injury, not by the incident itself.

Favours Defendant prevailed

This fact precluded the application of the violent act exception under Labor Code section 4660.1(c)(2), resulting in denial of increased permanent disability rating for psychiatric injury.

From the decision · page 13The mechanism of applicant's psychiatric injury was not the physical act of his colleague dropping the juvenile on applicant's wrist, which certainly cannot be construed as a violent act within the meaning of the labor code section. The psychiatric injury was caused by applicant's loss of his career as a probation correction officer due to the impairments from the orthopedic injury he sustained. Applicant's testimony was that when he realized he couldn't go back to work as a probation correctional officer, it devastated him. It was not the work incident that caused the psychiatric injury, but it was his inability to return to work as a correctional officer.

The incident resulting in applicant's wrist injury was not interpreted as a violent act within the meaning of the statute.

Favours Defendant prevailed

Without a violent act, the statutory exception allowing increased psychiatric permanent disability does not apply.

From the decision · page 12Applicant testified that physical fights didn't occur in his unit every day, but there was every day some type of physical event in the facility where he worked. It was in one such encounter with a resistant youth when applicant was trying to restrain the youth and get him in his room that one of applicant's colleagues dropped the juvenile on applicant's wrist. I would not interpret the encounter resulting in applicant's wrist injury as applicant being a victim of a violent act.

Found applicant sustained a psychiatric injury due 100% to occupational physical injury of the left wrist, but no ratable psychiatric impairment and no need for future medical treatment to the psyche at this time.

Dr. Dorsey's report was considered substantial on causation but did not support a rating for disability impairment as the psyche injury was predominantly caused by a physical injury.

From the decision · page 10The psychiatric permanent and stationary report of treating psychiatrist, E. Richard Dorsey, M.D., dated 2/27/2023, while finding that applicant sustained a psychiatric injury due 100% to occupational physical injury of the left wrist, found that applicant had sustained no ratable psychiatric impairment. Dr. Dorsey determined that he did not find any need for future medical treatment to the psyche at this time. Dr. Dorsey's 2/27/2023 report (Exhibit G), is silent as to whether or not applicant sustained any temporary total or temporary partial disability as a result of the injury to his psyche, but did indicate that applicant was mentally able to resume is former job (probation correctional officer) or to continue with his current job (delivery truck driver for a different employer), without any restrictions. The only of Dr. Dorsey's earlier reports, specifically Exhibit 2-M, dated 7/24/2020, that actually addresses applicant's disability status, indicates that Dr. Dorsey did determine applicant was temporarily

Found applicant sustained an industrial psychiatric injury due to the orthopedic injury, with MMI as of 4/7/2022, estimated GAF 66 (6% WPI), apportioned 85% to industrial injury, but permanent disability to psyche precluded by LC 4660.1(c)(1).

Dr. Lee's report was found more persuasive on the need for further medical treatment, but did not support a rating for disability impairment as the psyche injury was predominantly caused by a physical injury.

From the decision · page 11The Panel QME in psychiatry, Allen H. Lee, M.D., in his 4/7/2022 report (Exhibit 3), found that applicant sustained an industrial psychiatric injury due to the impact of the orthopedic industrial injury. He found applicant to have reached MMI as of the date of the examination (4/7/2022), and that from a psychiatric standpoint, applicant was likely temporarily partially disabled since he stopped work in May of 2018 until 4/7/2022. Dr. Lee estimates applicant's GAF score to be a 66, a 6% whole person impairment, if applicant was entitled to psychiatric impairment. Dr. Lee apportions 85% of the psychiatric impairment to the orthopedic industrial injury and 15% to non-industrial factors. However, permanent disability to the psyche is precluded based on LC Section 4660.1(c)(1), insofar as it is predominantly caused by a physical injury. Therefore, applicant is not entitled to an increased rating by reason of injury to the psyche. Dr. Lee opines that applicant's psychiatric treatment has been reasonable and necessary, and he should be afforded psychiatric follow-up care with Dr. Dorsey.

Labor Code section 4660.1(c)

Labor Code section 4660.1(c) precludes an increase in impairment rating for psychiatric disorder arising out of a compensable physical injury unless the injury resulted from a violent act or direct exposure to a significant violent act.

Applied to deny increased rating for psychiatric injury as the injury was not caused by a violent act.

From the decision · page 12LC 4660.1(c) states: "(1) Except as provided in paragraph (2), 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 section does not limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction, or psychiatric disorder, if any, that are a consequence of an industrial injury. (2) An increased impairment rating for psychiatric disorder is not subject to paragraph (1) if the compensable psychiatric injury resulted from either of the following: (A) Being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3..."

Labor Code section 3208.3(b)(1) and (2)

Labor Code section 3208.3(b)(1) and (2) set the burden of proof for compensable psychiatric injury and the standard for violent act exception.

Applied to determine that applicant's psychiatric injury did not meet the violent act exception.

From the decision · page 12LC 3208.3(b)(1) and (2) states: "(b)(1)In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. (2) Notwithstanding paragraph (1), in the case of employees whose injuries resulted from being a victim of a violent act or from direct exposure to a significant violent act, the employee shall be required to demonstrate by a preponderance of the evidence that actual events of employment were a substantial cause of the injury."

Applicant's testimony regarding the cause of his psychiatric injury focused on the loss of his position as a Probation Correctional Officer due to physical limitations, not the incident itself.

From the decision · page 12The applicant never asserted at trial that the incident that resulted in his left wrist injury was the cause of his psychiatric injury. It was the loss of his position as a Probation Correctional Officer due to his physical limitations and inability to continue in his career as a corrections officer that caused his psychiatric injury. It is not at all unusual for correctional officers at a juvenile detention center to encounter resistant juvenile inmates requiring applicant and other correctional officers to subdue an unruly juvenile Correctional officers are trained to deal with unruly and resistant juvenile offenders, and it is part of their usual work duties.