Psychiatric Injury May Result From Physical Injury

The California Workers’ Compensation Reporter provided a synopsis of Board panel decision in the July 1999 edition. The opinion is a Decision after Reconsideration and can now be cited because it was in the Reporter.

The applicant had an admitted back injury. The applicant was paid temporary disability. The applicant entered a vocational rehabilitation program. The applicant asked to interrupt vocational rehabilitation services because the applicant was hospitalized with suicidal ideation.

The applicant filed an application alleging that the psychiatric condition was a compensable consequence of the admitted back injury. A hearing was held before the Workers’ Compensation Judge (WCJ). The applicant testified that prior to the injury she had psychological counseling for childhood molestation.  Reports from two psychologists stated that the applicant was temporarily disabled due to depression. One psychologist indicated that the loss of hope in vocational rehabilitation precipitated her hospitalization, but was not the preponderant cause of her psychiatric illness. The original treating psychologist stated that her inability to be employed may have contributed to her depression.

The WCJ found no compensable psychiatric injury. The WCJ reasoned that Labor Code section 3208.3 controlled and that the applicant must prove that the back injury was the predominant cause of her psychiatric disability. Applicant filed a Petition for Reconsideration.

A Board panel of two Commissioners determined that 3208.3 is not applicable to a psychiatric injury that is a direct result of a physical injury. They reviewed the history of 3208.3 in their decision. They commented on the fact that in 1993 the section deleted reference to the sentence that commented on psychiatric injury which is the consequence of a physical injury. They indicated that the elimination of this sentence was not intended to do away with psychiatric injuries as a consequence of a physical injury.

The panel concluded that Labor Code section 3208.3 is not applicable to psychiatric injuries alleged as a consequence of a physical injury. The panel remanded the case to the WCJ but stated that the WCJ may find the psychiatric injury a compensable consequence of the physical injury if there is substantial evidence to support such a finding.

The key to these types of cases if this decision is followed will be in which medical report or side has the substantial evidence.

Case: Rebelo V. Washington Hospital

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

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