Compensable Consequences in California workers compensation.
A compensable consequence in California workers compensation is the addition of an another body part that was not originally claimed in the original DWC-2 or workers compensation claim form. From a litigation perspective these can be difficult as they may not be present or are over looked in the beginning, which is why I always advise my clients to claim every body part believed to be a result of a work injury on the original DWC-1.
Some of the most common compensable consequences are sleep, psyche, and sexual dysfunction. In fact these compensable consequences are so common the legislature revised the Labor Code in 2013 to delete these body parts from inclusion in Permanent Disability calculations. In other words, you can claim these body parts and receive treatment, but your Permanent Disability will not be increased because of them. You can receive Temporary Disability Payments (TTD) while receiving medical treatment for sleep, psyche, and sexual dysfunction up to the 104 week cap.
Unfortunately in most cases if you have a sleep, psyche, or sexual dysfunction compensable consequence your case is significantly more complex and less likely to resolve within the 104 week TTD cap. Some common compensable consequences are knee pain associated with an altered gait and low back injury, shoulder pain with a cervical injury or vice versa, or an opposing body part from over compensating to account for the original injury. If you are claiming CRPS (Complex Regional Pain Syndrome) or Fibromylgia as a compensable consequence you definitely need representation. These are progressive diseases that require special consideration.
Perhaps the most well known compensable consequence case is Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 159. The injured worker, who weighed over 400 lbs, worked as a cook and fell hurting his back an elbow. As part of his treatment his doctors recommended a weight loss program. However, because the employer did not recommend a specific program, applicant chose his own out of state program, then sought reimbursement from the carrier for the cost of the self procured weight loss program. The Employer fought the WCAB assigning liability for payment for the program and took the case to appeal where the appeals court found not only did the carrier have to pay for the weight loss program, but total temporary disability benefits during the time applicant was participating in the out of state program. Obviously this predates the formation of MPNs, Utilization Review, and the 104 week cap on Total Temporary Disability so the result would be significantly different today. Yet Braewood Convalescent is still the law, though further diminished by the conservative nature of the WCAB today. The state has gradually been replacing judges with former defense attorneys who seem to fit better into the judicial hierarchy.
Additionally, Braewood illustrates the complexities of medical treatment in a workers compensation case. If a non-industrial condition must be treated in order to provide treatment for a workers compensation injury, then the treatment must be provided and paid for by the workers compensation carrier. From a litigation perspective these types of problems almost always result in a trial, followed by an appeal and significant delays in treatment due to litigation. Until all appeals are exhausted treatment is stayed, sometimes for years. As long as the denial was done in good faith, there are no consequences for the WC carrier even when it seems unfair. Proving bad faith is a monumental task and there really is no remedy in workers compensation. It is simply a delivery system. Formulated to provide specific benefits within a reasonable time. Again, one means to reduce litigation is to list every body part affected by the work injury on the DWC-1 claim form. The proper way to add an additional body part is to file an Amended DWC-1 claim form and Amended Application for Adjudication. However, this resets discovery. If a new body part is claimed, the WC carrier has the right to reopen discovery on all issues so it is best to add body parts early in a claim, not later.