Psychiatric Injured Must Work At Least 6 Months
- Posted By: Harvey Brown
- December 1, 2003
The amount of filings of psychiatric claims had declined for a number of years. They have recently made a resurgence. One reason is that applicants are claiming the psychiatric injury is the result of a physical injury.
In this case the applicant had an admitted specific injury. The applicant had not worked for the employer for six months at the time of the injury. The applicant had back surgery for the admitted injury. Four years after the injury the applicant amended the original application to claim a psychiatric injury resulting from the original orthopedic injury.
The case went to trial and the Workers’ Compensation Judge (WCJ) ruled the applicant did not suffer a psychiatric injury because the applicant had not worked for the employer 6 months at the time of the original injury. The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ saying there was an injury.
On appeal, the appellate court looked at Labor Code section 3208.3 subdivision (d). The court looked at existing case law and determined that the six month rule did apply to physical injuries that occurred within the first six months of employment.
The applicant argued that there was no termination after the original injury so the applicant was employed longer than six months. The court differentiated between employed and “actually worked for” the employer. You must actually work for the employer for the six months. You can not use time while you are off because you are injured to account for the six months.
The applicant also tried to allege this statute was unconstitutional. The appellate court found this argument without merit.
Case: WALL MART STORES V. WCAB( GARCIA)
- Posted In: Work Injury