Labor Code 3208.3 Even Applies To Physical Injuries

The court of appeal, in a published decision, has overturned the Board panel decision of Robelo v. Washington Hospital on which many litigants had relied.

The applicant filed three separate claims over the years with the Workers’ Compensation Appeals Board(WCAB). The first ended in an award and apparently they did not file a petition to reopen (although the facts are not specific). The applicant apparently alleged a psychiatric condition in all three cases, in addition to physical complaints. The psychiatric condition was alleged as a consequence of a physical work injury.

The Workers’ Compensation Judge (WCJ) found that the applicant did not suffer any psychiatric injury, in any case, because the applicant did not meet the standard of compensability under Labor Code section 3208.3, subdivision (b) (1).

The applicant petitioned for reconsideration and the WCAB reversed, citing the Rebel case. One defendant filed a petition for review.

The court of appeal reviewed the legislative history of 3208.3. This court reviewed Robelo which held that 3208.3 did not apply to a psychiatric injury that was a compensable consequence of a physical injury. There was no writ of review on Robelo. The court then reviewed two “writ denied” cases that followed Robelo.

This court indicated that until now mere has been no appellate authority on this issue and that they are not bound by two “writ denied” cases or Robelo.

This court then analyzed the various appellate arguments presented by way of briefs on this case. The significance of this case is noted by the presence of the California Applicant’s Attorney Association (CAAA) presenting an amicus curiae brief.  This court concluded, that since 1993, that a consequential psychiatric injury is compensable only if it is more than half attributable to a physical industrial injury. This court found that the WCJ was correct, in this case, that Labor Code section 3208.3 applies to all claims of psychiatric injury, including those resulting form physical work injuries.  The rationale for this decision was that the potential for fraud in psychiatric claims is no less for claims of psychiatric claims as the result of physical injuries as there was the potential for fraud in a straight psychiatric filing.

The matter was remanded to the WCAB for further proceeding. In reality, all this may require is for the parries to clean up there medical opinions consistent with this opinion.

Case: Lockheed Martin V. WCAB (McCulIough)

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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