Archive for June, 2016

WCAB Panel Holds “Forceful Blow” Violent Enough for Psyche Injury

June 3rd, 2016 No comments

Happy Friday, dear readers!

Did you know your humble blogger is a lifetime victim of violence?  For all my clumsy, clumsy life I’ve fallen from swings and slides, bumped into walls and fellow-pedestrians, and, once, even fell out bed while trying to deny claims in my sleep.

What’s that, dear readers? Are you saying that my perfectly sheltered life is not one riddled with violence?  Well, the WCAB would disagree with you.

The case making the rounds this week is Larsen v. Securitas Security Services, in which a post January 1, 2013 injury involving a vehicle vs. pedestrian car accident included a psyche PD add-on.  But, as we all know, Labor Code section 4660.1(c) precludes PD add-on for psyche compensable consequence claims, unless the injured worker sustains a catastrophic injury, or is the victim of a violent act or is directly exposed to a significant violent act.

But the Larsen case involves a security card struck by a car in a parking lot.  No, dear readers, this wasn’t during a get-away and applicant was not bravely stopping jewel thieves from escaping with the orphanage’s recently donated diamonds.  This was a car accident that happened to happen at work.

The WCJ found the act of the car accident as violent, and the WCAB affirmed, rejecting defendant’s theory that “violence” requires criminal or quasi-criminal violence.  Instead, the WCAB relied on Black’s Law Dictionary as defining violence as “[o]f, relating to, or characterized by strong physical force <violent blows to the legs>. 2. Resulting from extreme or intense force <violent death>.  3.  Vehemently or passionately threatening <violent words>.

The panel interpreted this to mean that being struck from behind with enough force to be violent, and render applicant a victim of a violent act.

Your humble blogger respectfully disagrees, both with the result and the reasoning.  The violent act language is not new, and did not become law as part of SB-863.  The Labor Code included “violent act” language (and still does) as part of Labor Code 3208.3(b)(2) which states “in the case of employees whose injuries resulted from being a victim of a violent act or from direct exposure to a significant act…”  and then reduces the threshold of compensability from acts of employment being “predominant cause” to “substantial cause.”

In Clacher v. WCAB (80 CCC 182), a 2015 writ denied case, the WCAB found that “violent act” included applicant being “forcefully punched on her back and knocked on the floor by a coworker.”  In Soberon v. Orange County Pizza (2013 CCC Cal. Wrk. Comp. P.D. Lexis 453), applicant was assaulted by her employer.

In Gambina v. Canyon Market(2013 Cal. Wrk. Comp P.D. Lexis 304), the “violent act” was a store robbery including the applicant being shot.

Let’s look at the opposite, though – was the threshold of actual events of employment being predominant as to all causes lowered to “substantial cause” just because the injury was a violent blow?

In Duong v. RGW Construction (2010 Cal. Wrk. Comp. P.D. Lexis 93), an injured worker fell when the scaffolding upon which he was working suddenly collapsed, resulting in spine and upper extremity injuries.  But in that case, the WCJ and the WCAB agreed: the standard for whether the compensable consequence psyche claim actually was compensable was “predominantly caused.”  If such an event, one which was caused by another co-worker disassembling the scaffolding as applicant worked upon it, could be considered a violent act… wouldn’t the standard be “substantial cause”?

Now, here’s another idea… wouldn’t an act of violence be extraordinary in the workplace? It sure is! In Wal-Mart Stores, Inc., v. WCAB/Garcia, applicant sustained an “orthopedic injury to her back” but that injury was not enough to defeat a six-moth employment rule.  But, the Court of Appeal held that “[i]n our view, the ‘sudden and extraordinary’ language is limited to occurrences such as gas main explosions or workplace violence – the type of events which would naturally be expected to cause psychic disturbances even in a diligent and honest employee.” (Footnote 9).

Well, in the recent case of Dreher v. WCAB (where the Court of Appeal ruled that a wet sidewalk was not extra-ordinary), the applicant sustained very serious and extensive orthopedic injuries following his fall.  Even if the sidewalk being wet wasn’t sudden and extraordinary, couldn’t it be defeated in that case by claiming the fall was an act of violence, and thus, by the Wal-Mart court’s opinion, an “extraordinary” event?  The same can be said for a 250 pound truss falling on an injured worker; or a fall from a 24’ ladder.

In all these cases, don’t we see a pattern here the courts, whether panel decisions or citeable opinions by the Courts of Appeal recognize that there is a legal importance to acts of violence and reject the definition that a violent blow is violence as contemplated by the Labor Code?

What do you, dear readers? Is every single injury, other than a cumulative trauma, an act of violence?

Your humble blogger wishes you a restful and reflective weekend.

Categories: Uncategorized Tags:

Lien Rep Fails to Appear at Trial; Complains Due Process is Denied

June 1st, 2016 2 comments

Hello dear reader!

Your humble blogger bids you a happy Wednesday, and brings you a report on a case recently denied review by the Court of Appeal, Cline v. Saddleback RV Sales.  The main focus of the case was upon the protestations of a lien claimant.

The case in chief was resolved, but, as is often the case in our beloved Southern California, the case was beset on all sides by lien claimants.

Well, one of the lien claimants (not the appealing party) filed a DOR for a lien conference, and an unrepresented lien claimant failed to appear at the conference.  So, the defendant served the good doctor-lien-claimant with the pretrial conference statement, the notice of trial, and all of its exhibits.  The matter was set for a lien trial and, about a month before the trial, the lien claimant in question hired a lien representative.   The defendant then served the lien representative with the same documents.

Shortly thereafter, the lien claimant (and his representative) both failed to appear at the trial, at which time the WCJ ordered the matter submitted on the record, and the lien claimant sought removal, which the WCAB promptly denied.

The rallying cry for the lien representative on removal was, of course, that it did not have notice of the trial because the lien representative just came on the scene a month before the trial.

This is something that happens often enough when dealing with lien claimants, especially when the merits for the lien aren’t there – whether the facts, the law, or both are against the lien claimant, the strategy quickly shifts from one of prevailing in the case at hand, to a scorched Earth policy for future liens.

Every day that a claim remains open, the defendant suffers: adjusters have to divert their attention to the file, the treasury has to tie up more reserves, and the defense attorneys have to bill for their time in keeping an eye on the file.

Well, lien claimants can drive the price up of the file just by obstructing its closure: necessitating additional hearings by requesting last-minute continuances; retaining or changing lien representatives; setting matters for trial and then not appearing.  The lien claimant doesn’t end up with any extra money in its pocket, but the defendant ends up paying a bill anyway.  So how strong is the defense resolve on the next lien, when the lien claimant offers the reasonable price that undercuts the litigation costs?

It’s hard to accept this, but the right thing to do, big-picture, is to continue fighting the liens.

Categories: Uncategorized Tags: