Your loyal blogger seems regularly at odds with panel decisions on the meaning of Labor Code section 5412, specifically as to the term “in the exercise of reasonable diligence should have known.”

In your blogger’s simple and straightforward world, the statute means what it says.  So, for example, if you pick up a box at work, feel a sharp pain in your back, and then your back hurts from that point on, the exercise of reasonable diligence quickly helps you connect the dots – one does not need a rocket scientist, a brain surgeon, or even a chiropractor to conclude that the disability flowing from that instance is industrial.  But enough of Grinberg’s world, back to the world of California Workers’ Compensation.

In the case of Bertha Chan v. Carl Karcher Enterprises, the panel came down in favor of the applicant.

Applicant was allegedly enduring a campaign of physical and verbal sexual harassment by her immediate supervisor, when her employment was terminated in December 2007.  Applicant then filed an application one month later, alleging psychiatric injury as a result of the alleged harassment.
The treating physician and the Panel Qualified Medical Evaluator both found industrially caused injury. But what about Labor Code section 3208.3(e)?

A cumulative trauma can’t be sudden;
There was no notice to the employer of the injury;
There was no medical record of the impairment prior to the claim;
The trier of fact specifically found there was no sexual harassment; and
The exercise of reasonable diligence would have lead applicant to conclude that whatever impairment she had sustained was industrial.

After all, either applicant had sustained an impairment or she hadn’t – if she had, it happened at work before being fired; if she had not had any impairment by the time her employment was terminated, then something other than work caused it.
Assuming she had sustained some psyche injury prior to the termination of employment, then how could physical and verbal sexual harassment on an ongoing basis not be linked to the impairment?

Your garden variety defense attorney is thus forced to watch logic prove a blunt tool in situations such as these. It is worth noting that the defense attorney in this case, in the filed answer, acknowledged that there was no evidence presented at trial of the concurrence of applicant’s disability and knowledge of the industrial causation of the injury.  But actual knowledge isn’t the standard; the standard is known or should have known.  The defense has petitioned for reconsideration.  I hope you will join me in waiting to see if, perhaps, some new life could be breathed into this defense.