Home > 3208.3, Defenses, Tactics and Strategy > Psyche Claims: Divide and Conquer

Psyche Claims: Divide and Conquer

This is an interesting one, but it takes some clarity of thought to keep the party names straight.  Given that today is Friday, your ever-accommodating blogger simply replaced the names with party 1, 2, 3, etc.

Applicant is employed by Party 1, and sustains injuries to his back with three specific dates of injury and one cumulative trauma.  Applicant later leaves the employ of Party 1 and goes to work for Party 2, for whom he is still employed roughly two months later when he sustains another injury in a vehicle accident.

The Agreed Medical Evaluator on the case opines that 65% of applicant’s impairment was caused by the injury sustained while working for Party 2, and the remaining 35% spread out among the injuries sustained while working for Party 1.  With me so far?

Party 1 – 4 orthopedic injuries – 35% impairment causation

Party 2 – 1 orthopedic injury – 65% impairment causation

Applicant then amends his claim to include a psyche injury based on the orthopedic injuries.

The psyche AME concurs with the orthopedic AME in terms of causation.  So Party 1 and Party 2 raise their respective defenses.

Party 1 claims that the injuries sustained while applicant was in its employ are not the “predominant cause” of applicant’s psyche injury, as required by Labor Code section 3208.3(b)(1), and Party 2 claimed that applicant had not been employed for six months at the time of his injury, as required by Labor Code section 3208.3(d).

The Workers’ Compensation Judge knocked out the defense of Party 2, presumably because of the “sudden and extraordinary employment condition,” to wit, a car accident, that is not reasonably to be expected from landscaping work.  But, the WCJ did acknowledge and approve of Party 1’s “predominant cause” defense.

The Workers’ Compensation Appeals Board affirmed and the Court of Appeal denied review.  (Monty Lewis v. Workers’ Compensation Appeals Board (2011)).

Just a thought – let’s say applicant worked for four employers, one after another, and sustained an injury while working for each one.  If the evaluating physician apportioned 25% causation to each employer from the inevitable psyche injury, would the “predominant cause” defense bar the claim?

If the answer is yes, then no matter how legitimate the claim or debilitating the injury, the fact that multiple employers contributed to the impairment would help prevent liability for any of them.  A worthwhile defense to explore in similar circumstances, and a reason for multiple employers to pool their resources and spread causation out thinner than “predominant cause” can tolerate.

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