Compensable Consequence Injuries
The California law of workers' compensation has long followed a principal commonly known as the
''compensable consequences'' doctrine. Under this doctrine, where a subsequent injury is the direct and
natural consequence of an original industrial injury, the subsequent injury is considered to relate back to the
original injury and--unless it also occurred at work or under other conditions that might make it industrial--it
is not treated as a new and independent injury.
Southern Cal. Rapid Transit Dist. v. Workers' Comp. Appeals Bd. (Weitzman) (1979) 25 Cal.3d 158
(injury sustained in an auto accident while driving home after delivering a ''return to work'' slip to the
employer following the employee's recovery from industrial injury was found to relate back to the industrial
injury);
Ballard v. Workmen's Comp. Appeals Bd. (1971) 3 Cal.3d 852 [92 Cal. Rptr. 1, 478 P.2d 937, 36 Cal.
Comp. Cases 34] (drug addiction from pain medication prescribed for industrial injury found to relate back
to original industrial injury);
Heaton v. Kerlan (1946) 27 Cal.2d 716 [166 P.2d 857, 11 Cal. Comp. Cases 78] (increased disability
due to medical malpractice in surgery to treat industrial injury found to relate back to industrial injury);
Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230 [60 P.2d 276] (disability caused by doctor's
improper treatment of industrial injury found to relate back to industrial injury);
Beaty v. Workers' Comp. Appeals Bd. (1978) 80 Cal.App.3d 37 [144 Cal. Rptr. 78, 43 Cal. Comp.
Cases 444] (increased disability caused by off-the-job fall from a ladder found to relate back to industrial
injury where pain and weakness from industrial injury contributed to the fall);
Dixon v. Ford Motor Co. (1975) 53 Cal.App.3d 499 [125 Cal. Rptr. 872, 40 Cal. Comp. Cases 1058]
(employee's death due to negligent treatment in employer's dispensary following industrial injury found to
relate back to industrial injury);
Laines v. Workers' Comp. Appeals Bd. (1975) 48 Cal.App.3d 872 (injury sustained in car accident on the
way to treatment for industrial injury found to relate back to industrial injury);
State Comp. Ins. Fund v. Industrial Acc. Com. (Wallin) (1959) 176 Cal.App.2d 10 (increased disability
caused when employee amputated a finger while using power saw at home found to relate back to industrial
eye injury where industrial injury impaired employee's vision while using saw).)
In conclusion, the WCAB wrote in pertinent part:
Divjakinja v. Workers' Compensation Appeals Bd., (2007) 73 Cal. Comp. Cas. 142
The California law of workers' compensation has long followed a principal commonly known as the
''compensable consequences'' doctrine. Under this doctrine, where a subsequent injury is the direct and
natural consequence of an original industrial injury, the subsequent injury is considered to relate back to the
original injury and--unless it also occurred at work or under other conditions that might make it industrial--it
is not treated as a new and independent injury.
Southern Cal. Rapid Transit Dist. v. Workers' Comp. Appeals Bd. (Weitzman) (1979) 25 Cal.3d 158
(injury sustained in an auto accident while driving home after delivering a ''return to work'' slip to the
employer following the employee's recovery from industrial injury was found to relate back to the industrial
injury);
Ballard v. Workmen's Comp. Appeals Bd. (1971) 3 Cal.3d 852 [92 Cal. Rptr. 1, 478 P.2d 937, 36 Cal.
Comp. Cases 34] (drug addiction from pain medication prescribed for industrial injury found to relate back
to original industrial injury);
Heaton v. Kerlan (1946) 27 Cal.2d 716 [166 P.2d 857, 11 Cal. Comp. Cases 78] (increased disability
due to medical malpractice in surgery to treat industrial injury found to relate back to industrial injury);
Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230 [60 P.2d 276] (disability caused by doctor's
improper treatment of industrial injury found to relate back to industrial injury);
Beaty v. Workers' Comp. Appeals Bd. (1978) 80 Cal.App.3d 37 [144 Cal. Rptr. 78, 43 Cal. Comp.
Cases 444] (increased disability caused by off-the-job fall from a ladder found to relate back to industrial
injury where pain and weakness from industrial injury contributed to the fall);
Dixon v. Ford Motor Co. (1975) 53 Cal.App.3d 499 [125 Cal. Rptr. 872, 40 Cal. Comp. Cases 1058]
(employee's death due to negligent treatment in employer's dispensary following industrial injury found to
relate back to industrial injury);
Laines v. Workers' Comp. Appeals Bd. (1975) 48 Cal.App.3d 872 (injury sustained in car accident on the
way to treatment for industrial injury found to relate back to industrial injury);
State Comp. Ins. Fund v. Industrial Acc. Com. (Wallin) (1959) 176 Cal.App.2d 10 (increased disability
caused when employee amputated a finger while using power saw at home found to relate back to industrial
eye injury where industrial injury impaired employee's vision while using saw).)
- According to the WCAB's letter, the VR cases are difficult to reconcile with the long line of
compensable consequence cases cited above, since the compensable consequence cases implicitly
recognize that, when the primary injury arises out of and occurs in the course of the employment (see
Labor Code § 3600(a), imposing liability on employers only for injuries arising out of and in the course
of the employment), then the natural consequences that flow from that primary injury normally should
also be deemed to arise out of and occur in the course of the employment. Moreover, the WCAB
pointed out, the VR cases suggesting that there is a new injury for a second injury that is the
compensable consequence of the original industrial injury are difficult to reconcile with the Supreme
Court's decisions in Nickelsberg v. W.C.A.B. (1991) 54 Cal. 3d 288, 285 Cal. Rptr. 86, 814 P.2d
1328, 56 Cal. Comp. Cases 476, and Massey v. W.C.A.B. (1993) 5 Cal. 4th 674, 20 Cal. Rptr. 2d
825, 854 P.2d 117, 58 Cal. Comp. Cases 367. In Nickelsberg, the Court held that under Labor
Code §§ 5410, 5803, and 5804 the WCAB lacked jurisdiction to award benefits for [**17] a
period of TD that started more than five years after the date of the original injury, when the second
injury was the consequence of medical treatment provided for the industrial injury. The Court in
Massey found that under Labor Code § 5408 the WCAB lacked jurisdiction to award death benefits
to the dependents of an employee who died as a result of industrially-related back surgery that
occurred approximately 10 years after the employee's original injury. The WCAB did not believe the
Court would have reached these decisions had it deemed the second injuries to be new injuries with
their own statutes of limitations.
In conclusion, the WCAB wrote in pertinent part:
- " Here, Divjakinja's June 14, 2004 industrial back injury caused pain and weakness in his legs that, at
least in part, contributed to a June 6, 2006 fall at home, resulting in injury to his right knee and a need
for right knee surgery. This June 6, 2006 fall at home was not an entirely new and independent
industrial injury, having no relationship to original June 14, 2004 injury. Instead, it was a compensable
consequences injury that related back to the original industrial injury. Indeed, without the original June
14, 2004 industrial back injury, there would be no way to bring the June 6, 2006 fall at home within
Labor Code section 3600(a), which makes employers liable only for ''any injury . . . arising out of and
in the course of employment.'' (See also, Lab. Code, § 3600(a)(1) (providing that one of the
''conditions of compensation'' is that ''the employee is performing service growing out of an incidental
to his or her employment and is acting within the course of his or her employment'').) Therefore, the
June 6, 2006 right knee injury is not a separate and independent ''single injury'' that could entitle
Divjakinja to up to an additional 104 weeks of temporary disability indemnity under Labor Code
section 4656(c)(1)."
Divjakinja v. Workers' Compensation Appeals Bd., (2007) 73 Cal. Comp. Cas. 142
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