Labor Code Section 3208.3- provides among other things that no compensation shall be paid if the psychiatric injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action.
Complex Regional Pain Syndrome formerly reflex sympathetic dystrophy is a chronic systemic disease characterized by severe pain, swelling, and changes in the skin. CRPS is expected to worsen over time. It often initially affects an arm or a leg and often spreads throughout the body. Complex Regional Pain Syndrome is associated with dysregulation of the central nervous system and autonomic nervous system resulting in multiple functional loss impairment, and disability. Complex Regional Pain Syndrome is known to cause psychological problems, such as depression and anxiety due to constant pain and reduced quality of life. The cause of Complex Regional Pain Syndrome is currently unknown. The syndrome can affect any organ in the body. Complex Regional Pain Syndrome affects both men and women but is three times more common in women. There are potentially three stages of Complex Regional Pain Syndrome.
In determining the degree of Permanent Disability the medical examiner may consider the synergistic effect of applicant’s injury, any surgeries, whether further surgery would be beneficial, the effects of pain medication and the conclusion of a vocational rehabilitation expert that the applicant is not feasible for vocational retraining and has no future earning capacity, and is thus, permanently totally disabled.
Multiple Injuries To The Same Body Part.
Pursuant to SB 899, and the decisions in Brodie and Benson, successive injuries to the same body part that become permanent and stationary at the same time can no longer be rated as a single injury. Rather, successive injuries must be rated separately, except when physicians cannot parcel out the causation of disability. See Benson v. WCAB (2009) 74 CCC 113.
In Regards To Burden Of Proof Regarding Overlap Between Injuries
The defendant bears the burden of proving the extent of overlap, if any, between the prior and current permanent disability. It is the defendant’s burden to establish the existence of a prior award and to establish the extent of overlap between that prior award and applicant’s current permanent disability.
The statute of limitations for a compensable consequence injury relates back to the statute of limitations for the original injury. If the original injury is timely filed, then any injuries which thereafter occur as a consequence of the original injury or injuries are within the statute.
New and further disability is not defined in the statutes and judicial interpretation has not flushed out all its potential permutations. Thus, its meaning is not entirely clear. However, it has been judicially defined “to mean disability . . . resulting from some demonstrable change in an employee’ condition, including a gradual increase in disability. .” Nicky Blair’s Restaurant v. WCAB (1980) 45 CCC 876. See CHP v WCAB (2010) 75 CCC 1241.
In Regards To The Statute Of Limitations Cumulative Trauma Injury
Date of injury in cases of cumulative trauma injuries is date on which employee first suffered disability and knew, or should have known, that such disability was caused by employment. Statute of limitations is one year thereafter.
Regarding A Petition To Reopen For New And Further Disability
Labor Code Section 5410 provides that a party can petition to reopen within 5 years of the date of injury upon the ground that the original injury has caused new and further disability . . . The new and further disability must be based on the body parts that were part of the original award or that were compensable consequences of injuries to the original body parts contained in the original award.
A petition to reopen for new and further disability requires that there be a causal connection between the alleged “new and further disability” and the original industrial injury. Put another way, the new and further disability must be a result or an effect of the prior compensable injury. This causal connection may be in the way of further injury to the same body part or injury to a new body part as a compensable consequence of the original injury.
Regarding Psychiatric Permanent Disability 6 Month Rule
Labor Code Section 3208 generally bars claims of psychiatric injury if the applicant was employed less than six months. Exception “sudden and extraordinary employment condition.”