Alright, dear readers, I’ve got an interesting one for you today!  (Not that I don’t always have interesting stuff…)

As we know, Labor Code section 3208.3(h) provides a defense to psychiatric injury allegedly sustained by an employee with an employment history of less than six months with that employer, unless the injury was sudden and extraordinary.  The sudden part is usually a given, but the extraordinary element depends on the nature of the work.

For example, burning one’s hand with an iron while engaged in the dry-cleaning trade is exactly what you would expect to happen, so it’s not extraordinary.   (Bonilla v. WCAB.)  The same can be said of falling off a 24’ ladder while picking avocados.

But, in the recent case of Carlos Torrez v. Sequa Enterprises, the WCJ found, as did the WCAB, that a window-installer falling from a second-floor scaffold is “extraordinary.”

Mr. Torrez was employed installing a window on the second floor of a residential unit, having been employed by Sequa for less than six months, and when scaffolding rocked (apparently it was not tied to the building) he fell between the scaffolding and the building, causing very serious injuries.  It appears that the employer had failed to adopt some of the safety measures used by other scaffold-using businesses.

In resisting the psyche claim, however, the defense raised the issue of 3208.3(h), which shifted the burden back onto the applicant to prove that this was an extraordinary injury.  Well, not content to simply lose out the psyche claim, the applicant’s attorney went on the offensive and found an expert witness to testify that a fall from a second-floor scaffold WAS extraordinary in this business.

Applicant put on a 30-year veteran of the construction industry, who had worked on over 400 projects, 90% of which had involved scaffolding work.  In his opinion, this injury was not one that a person would expect doing this type of work.

The WCAB affirmed – there’s no need for a professional degree or license to qualify as an expert, and it was sufficient that the witness possessed special knowledge of the subject matter (typically to bridge the gap between the fact-finding duty of the WCJ and the facts that are beyond common knowledge).

But recall, if you will, that in the avocado case, the injured worker testified to having picked fruit since he was 17 years old (being 35 at the date of injury), and that between 1992 and 2010, had never fallen off a ladder, nor heard of anyone else doing the same.  In that case, the injured worker’s testimony, which was the functional equivalent of the expert witness testimony in this case, failed to sway the Court of Appeal.

So, dear readers, what should the defense community do to respond to such a situation?  Well, when we’re facing a psyche claim perhaps it should be standard operating procedure to locate an expert witness that will affirmatively prove (if only to negate applicant’s attempt to meet his or her burden) that the event was not extraordinary.

Realistically, the best person to help you with this is going to be the employer, who will likely be familiar with the industry and know someone who is a 30-year veteran or the like.  And it might prove to be worthwhile to go after the extra litigation expense of retaining an expert.  It certainly paid off for applicant in this case.