WCDefenseCA

When your humble blogger was just knee-high to a grasshopper, long before he was the freakishly (and handsomely) tall workers’ compensation defense attorney that sits before this very screen, my uncle Joe sat me down on his knee and gave me a very important lesson.

“Sometimes,” he said, “people get hurt at work, and sometimes those injuries cause psychiatric injuries as well as physical ones,  but those injuries are barred by Labor Code section 3208.3(h) unless the employee has been with the employer for at least six months, or the injury is resulting from a sudden and extraordinary event.”

My uncle Joe was a wise man, and this subsection has come to bar many claims.  Recently, the Court of Appeal denied applicant’s writ of review of a WCAB decision finding that applicant’s injury was NOT extraordinary when his tool belt caught on a 250 pound truss causing it to fall on him, injuring his left side.  (Alves v. SCIF)

There wasn’t much dispute that the injury was sudden, but extraordinary?  Does applicant have a case?  What do you think, dear readers, if a 250-pound truss suddenly fell on a carpenter version of you, would it be extraordinary?

Well, the WCAB, in reversing the WCJ, found that applicant’s claim was defeated by the “extra-ordinary element.”

Rejecting the WCJ’s report, which relied on the panel case in Matea v. WCAB (2006), wherein a Home Depot employee to find that a pile of logs falling on a worker’s leg was both sudden and extraordinary, because, in this case, the two are not the same.  In the WCAB’s opinion, the falling of a truss was NOT extraordinary, because it could happen at any time when anything, including a tool belt gets caught on it.

The WCAB also relied on the Court of Appeal case in Bayanjargal, which held that a roofer’s fall from a roof was not an extraordinary injury.

Now, there’s an important lesson to take away from this – don’t be disheartened if the case doesn’t work out at the trial level.  The defendant in this case didn’t and it came back with a victory.  Why?  Because there is an undeniable level of subjectivity in this analysis – like jurors in a tort civil trial, the WCAB commissioners and the WCJ are asked to determine what is reasonable expected in any given industry, which it is unlikely the commissioners and WCJ’s had been engaged in themselves.

So, if you take a hit at the trial level on a 3208.3(h) case, don’t be shy about a petition for reconsideration.

Have a great weekend, folks!