Kris Wilson was employed as a firefighter by the Department of Forestry when he reported to a wildfire in Lompoc. He was assigned to the drainage area where he inhaled fumes and smoke from the fire as he was not wearing a breathing apparatus. Applicant performed this work for several hours until approximately 8:00 a.m. the next day.
The next day he went to Sierra Vista Hospital in San Luis Obispo and went through the emergency department, and was later taken to Kaiser, and then to the Antelope Valley Hospital where he was admitted to the ICU and remained hospitalized for two weeks. He developed ulcerations of the tongue, mouth and lips. He vomited with high fevers and developed a rash all over his entire body. He had renal failure, transaminitis with interstitial infiltrates and respiratory failure requiring intubation. He was ultimately extubated approximately two weeks after his admission to the hospital.
He returned to work a year later but was unable to keep pace with his coworkers and became concerned about his ability to work as a firefighter. He was taken off work by his PTP and last worked in July 2015.
Wilson claimed injury to his lungs, psyche, left eye, head, brain, heart and circulatory system. A psychiatric PQME said that Wilson “described feeling emotionally traumatized following his symptoms resulting from the fire and by his near death experience in the hospital following his injury. As reported above, he believes that he has a serious physical injury that may kill him, shorten his life or send him back to the hospital. He has a vivid memory of waking up while he was intubated at the hospital and this is re-experienced in a recurring nightmare approximately 2 to 3 times each week”.
The WCJ issued a Findings and Award which found that applicant is entitled to a permanent disability award of 66%. The permanent disability award excluded an impairment rating for applicant’s psychiatric injury pursuant to section 4660.1(c) finding that he had not suffered a catastrophic injury. Reconsideration was granted, and it was found that Wilson suffered a catastrophic injury and was entitled to the psychiatric component of his injury in the En Banc decision of Wilson v State of California, Cal-Fire.
Since the phrase “catastrophic injury” is ambiguous as used in section 4660.1(c)(2)(B), the WCAB considered extrinsic sources to “select the construction that comports most closely with the apparent intent of the Legislature.” It concluded that the “Legislature did not intend to permit an increased impairment rating for a psychiatric injury only in cases where the employee suffers a specific impact to his or her earning capacity as a result of the injury.”
However, determination of whether an injury is catastrophic will be a fact-driven inquiry. These factors include, but are not limited to, the following, as relevant::
1. The intensity and seriousness of treatment received by the employee that was reasonably required to cure or relieve from the effects of the injury.
2. The ultimate outcome when the employee’s physical injury is permanent and stationary.
3. The severity of the physical injury and its impact on the employee’s ability to perform activities of daily living (ADLs).
4. Whether the physical injury is closely analogous to one of the injuries specified in the statute: loss of a limb, paralysis, severe burn, or severe head injury.
5. If the physical injury is an incurable and progressive disease.
Not all of these factors may be relevant in every case and the employee need not prove all of these factors apply in order to prove a “catastrophic injury.” This list is also not exhaustive and the trier of fact may consider other relevant factors regarding the physical injury. In determining whether an injury is catastrophic, the trier of fact should be mindful of the legislative intent behind section 4660.1(c).
The evidence in this case “therefore supports that the intensive treatment and the lasting impact of the injury on applicant have resulted in a catastrophic injury.”