SB 863 placed limits on the ability to claim permanent disability for psychiatric injury, sleep disorder or sexual disorder, if it is the result of a physical injury. Before the new law, these claims were referred to as AMA Guides “add-on” cases. A recent case may answer questions about the use of a PQME with a specialty in those areas in add-on cases.
Shari Hernandez, a bank teller for Fremont Bank, claims to have sustained a specific injury to her knee, and cumulative trauma injury to her left leg and foot. Both Applications were amended to include claim of injury to psyche, stomach and internal organs.
The parties later decided to utilize Joel Renbaum, M.D., as an orthopedic AME. Applicant petitioned for assignment of an additional panel in psychiatry, and an Order to that effect was issued by a WCJ. It is from this Order that Defendant petitioned for removal.
Defendant relied on Labor Code Section 4660.l(c)(l), which it quotes as follows: “‘there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction or psychiatric disorder, or any combination thereof arising out of a compensable physical injury’ for injuries occurring on or after 1/1/13.” Defendant goes on, “Therefore, a medical legal evaluation in the specialty of psychiatry is inappropriate.”
The WCAB denied removal in the case of Hernandez v. Fremont Bank. The WCJ pointed out that the second sentence of 4660. l(c)(l), states, “Nothing in this section shall limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction, or psychiatric disorder, if any, that are a consequence of an industrial injury.”
The appropriate procedure to resolve a dispute over injury is to utilize the panel Qualified Medical Evaluator mechanism (or agree to an AME). The fact that compensation for a permanent psychiatric impairment is not available to this injured worker does not deprive her of her potential right to medical care or, for that matter, temporary disability indemnity on a psychiatric basis.