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.