ADJ12981125 · April 12, 2022

The psychiatric injury was compensable and sudden and extraordinary; medical treatment was found necessary and included in the amended award.

From the decision · page 8Applicant further contends that the Amended Award should include an award for further medical treatment to the body parts found to be industrial in the July 21, 2021 Findings of Fact. (Petition, at 6:15.) The WCJ's Report responds that the issue raised by the parties for trial was whether applicant was entitled to medical treatment if the psychiatric injury did not meet the "sudden and extraordinary" exception to the 6-month employment rule of section 3208.3(d). However, because the Findings of Fact established that applicant's injury was sudden and extraordinary, and the psychiatric injury was compensable, the issue was rendered moot. While we agree with the WCJ's analysis of the issue under section 3208.3(d), we also observe that there is no dispute that applicant sustained injury to the right eye, hearing, and psyche, and that the record demonstrates the need for medical treatment to cure or relieve from the injury. (July 21, 2021 Findings of Fact, Finding No.

The wage stipulation at MSC was found to be a unilateral mistake; applicant's wage capacity including a scheduled raise was properly considered; the temporary disability rate was increased accordingly.

Favours Applicant prevailed

This raise was not reflected in the MSC wage stipulation and properly considered to increase TTD rate.

Defendant knew or had reason to know the wage stipulation was incorrect, constituting good cause to relieve applicant of stipulation.

Favours Applicant prevailed

Allowed setting aside the erroneous wage stipulation and awarding TTD based on actual earning capacity.

From the decision · page 8good cause exists to relieve applicant of the wage stipulation, because the defendant knew or had reason to know the wage stipulation was incorrect.

Psychiatric injury was found compensable and sudden and extraordinary, supporting entitlement to further medical treatment.

Favours Applicant prevailed

Supported inclusion of further medical treatment in amended award.

From the decision · page 8Applicant further contends that the Amended Award should include an award for further medical treatment to the body parts found to be industrial in the July 21, 2021 Findings of Fact. (Petition, at 6:15.) The WCJ's Report responds that the issue raised by the parties for trial was whether applicant was entitled to medical treatment if the psychiatric injury did not meet the "sudden and extraordinary" exception to the 6-month employment rule of section 3208.3(d). However, because the Findings of Fact established that applicant's injury was sudden and extraordinary, and the psychiatric injury was compensable, the issue was rendered moot. While we agree with the WCJ's analysis of the issue under section 3208.3(d), we also observe that there is no dispute that applicant sustained injury to the right eye, hearing, and psyche, and that the record demonstrates the need for medical treatment to cure or relieve from the injury. (July 21, 2021 Findings of Fact, Finding No.

Found industrial injury with predominance and temporary disability from January 17, 2020 continuing; identified psychiatric injury and need for further treatment including psychotherapy and possible medication management.

Supports compensability and need for further medical treatment for psychiatric injury.

From the decision · page 2Dr. Lindsey Hailston acted as the Qualified Medical Examiner (QME), and evaluated applicant on August 28, 2020. The QME found industrial injury with predominance, and further found applicant temporarily disabled from January 17, 2020 and continuing. (Exhibit X, report of Lindsey Hailston, Psy.D., dated August 28, 2020, at p.25.)

Cal. Lab. Code 4453(c)(4)

Temporary disability indemnity is based on earning capacity at time of injury when actual earnings do not reflect true earning power.

Applied to increase temporary disability rate to reflect scheduled raise.

From the decision · page 6Temporary disability indemnity is intended primarily to substitute for the worker's lost wages, in order to maintain a steady stream of income. (Chavira v. Workers' Comp. Appeals Bd. (1991) 235 Cal.App.3d 463, 473 [286 Cal.Rptr. 600].) An estimate of earning capacity is a prediction of what an employee's earnings would have been had [s]he not been injured. (Argonaut Ins. Co. v. Ind. Acc. Comm. (Montana) (1962) 57 Cal.2d 589, 594 [27 Cal.Comp.Cases 130].)

Cal. Lab. Code 5702

The Appeals Board may reject stipulations and base decisions on evidence presented at hearing.

Applied to set aside erroneous wage stipulation and base award on actual earning capacity.

From the decision · page 6The parties to a controversy may stipulate the facts relative thereto in writing and file such stipulation with the appeals board. The appeals board may thereupon make its findings and award based upon such stipulation, or may set the matter down for hearing and take further testimony or make the further

Cal. Lab. Code 5803

Good cause to rescind or amend award includes mutual mistake of fact and knowledge of mistake by other party.

Applied to relieve applicant of wage stipulation due to defendant's knowledge of mistake.

From the decision · page 7Alternatively, once a stipulation has been accepted and a decision based on it, the Appeals Board must determine if good cause exists before setting the stipulation aside. (County of Sacramento v. Workers' Comp. Appeals Bd. (Weatherall) (2000) 77 Cal.App.4th 1114 [65 Cal.Comp.Cases 1].) Good cause to rescind, alter or amend the award pursuant to section 5803 may consist of a showing of fraud, duress, undue influence, mutual mistake of fact, mistake of law, invalidity of execution, incompetency, or minority at the time of execution of the agreement. (Lab. Code, § 5803; see California Workers' Compensation Law (Cont. Ed. Bar 4th Ed.) § 16.61 et seq.; see also Argonaut Ins. Exch. v. Industrial Acc. Com. (Bellinger) (1958) 49 Cal.2d 706 [23 Cal.Comp.Cases 34]; Smith v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 1160 [50 Cal.Comp.Cases 311]; Carmichael v. Industrial Acc. Com. (1965) 234 Cal.App.2d 311 [30 Cal.Comp.Cases 169].)

Cal. Lab. Code 3208.3(d)

Medical treatment is compensable if psychiatric injury is sudden and extraordinary under section 3208.3(d).

Applied to include further medical treatment in amended award.

From the decision · page 8Applicant further contends that the Amended Award should include an award for further medical treatment to the body parts found to be industrial in the July 21, 2021 Findings of Fact. (Petition, at 6:15.) The WCJ's Report responds that the issue raised by the parties for trial was whether applicant was entitled to medical treatment if the psychiatric injury did not meet the "sudden and extraordinary" exception to the 6-month employment rule of section 3208.3(d). However, because the Findings of Fact established that applicant's injury was sudden and extraordinary, and the psychiatric injury was compensable, the issue was rendered moot. While we agree with the WCJ's analysis of the issue under section 3208.3(d), we also observe that there is no dispute that applicant sustained injury to the right eye, hearing, and psyche, and that the record demonstrates the need for medical treatment to cure or relieve from the injury. (July 21, 2021 Findings of Fact, Finding No.

Applicant's paystubs showing a scheduled raise shortly after injury not available at MSC; defendant had reason to know wage stipulation was incorrect.

From the decision · page 2Applicant's counsel made an offer of proof that the information reflecting applicant's salary increase shortly after the date of injury was not "readily available" at the MSC. (Minutes, at 3:29.) Applicant testified to the mechanism of injury. (Id., at 4:19.) Applicant further testified to providing his attorney in February, 2020 with paystubs reflecting a salary increase shortly after his date of injury. (Id., at 5:19.)