Ok dear readers, it’s Monday, and I’ve got some semi-good news for you!

You may recall a while back this blog diligently wrote about the Guzman case.  No, no, dear readers, not THAT Guzman – your AMEs and QMEs are still free to go fishing through the guides to make sure the injured worker gets enough money from the case.  The other Guzman, the one in which the WCAB held that a soil compactor landing on applicant was considered both sudden and extraordinary such as to defeat the 6-month employment rule of Labor Code section 3208.3(d).

Well, SCIF was not inclined to let matters sit, so it took the WCAB up to the Court of Appeal.

Just last Tuesday, the COA issued its (unfortunately) unpublished decision reversing the WCAB.  The COA took note that the incident happened when applicant as using the compactor on uneven ground.

Previously, at trial and on recon, the reasoning relied on applicant’s testimony that he had never heard of a compactor falling on anyone and that, in his 12 years of experience, he had never lost control of a compactor (prior to this claim).

On Appeal, SCIF advanced the theory that for an even to be “extraordinary” it must be “uncommon, unusual, and totally unexpected.”  As such, the “risks of tilting, falling, or losing balance while operating the heavy machine on a 45-degree slope were all reasonably foreseeable risks.”  SCIF also argued that the burden of proving that the event was sudden and extraordinary falls on the applicant, not on the defendant.

In reversing the WCAB, the Court cited three published opinions: Matea, Garcia, and Dreher.  Relying on this authority the COA noted that (1) it is the applicant and not the defendant that bears the burden of proof in establishing an event as sudden and extraordinary; and (2) “Guzman did not provide any evidence establishing that it is ‘uncommon, unusual, and totally unexpected’ for a rock to be in soil, for a compactor to rise when striking a rock, or for an operator to become unbalanced and fall when the compactor rises on a 45-degree hillside.”

But, after holding that there was insufficient evidence to support a finding that the event was “extraordinary” the Court of Appeal went further and held that the event was not even sudden:  if the circumstances in question are working on a slope rather than on even ground, applicant had been working on a slope for some 30 minutes before the accident.

So, great news, right?  Well, not so much.  First off the case is not published so we can’t exactly rely on it as compelling authority, although the reasoning can be copy-pasted into any trial brief and shamefully asserted as the attorney’s own words.  We’re lawyers, not saints, and we’re not above plagiarism!

Also, think about the litigation budget SCIF incurred to get this far.  Not only did SCIF have to shoulder the burden of a petition for reconsideration, but also a petition for writ of review.  The delay and cost involved might make any private-sector defendant hesitate.

This result should encourage us to continue litigating and appealing these cases because victory is possible, and this result will hopefully be a decent taste of reality to applicant attorneys.  But, that being said, if anyone has the Court of Appeal on speed-dial, perhaps we could encourage the Court to publish this case?