Your humble blogger has repeatedly expressed his frustration with the interpretation of Labor code section 4660.1(c)(1) and the “violent act” definition.
Labor Code section 4660.1 provides in pertinent part that you don’t get an increase in permanent disability for compensable consequence psyche claims unless the injury is “catastrophic” (since we don’t have a definition for this term of art, I am imaging a cat that works as an astrophysicist) or being a victim of a violent act or being exposed to a significant violent act.
Did Someone Say Cat Sagan?
The WCAB took this and ran with it to find that a violent act was just a strong physical blow, and not necessarily one of criminal or quasi-criminal nature. So, in Larsen v. Securitas Security Services, a 2016 panel decision, a security guard accidentally struck by a car in a parking lot could claim a compensable consequence psyche injury.
The result of this line of thinking is that almost every applicant attorney claims that so long as the injury is not cumulative in nature, but a specific injury, it is, of course, a “violent act” and thus renders 4660.1(c)(1) moot.
Well, not so fast!
Reader D.Z. kindly sent me a recent panel decision in the case of Martin Garcia v. Harvest Church which seems to resist this trend. (If you, dear reader, would also like this type of very vague and effectively anonymous shout-out, feed your humble blogger your most interesting cases via e-mail!) Applicant therein claimed a compensable consequence psyche injury after a gate fell on his foot. Although the left foot claim was accepted, and the psyche compensable consequence was accepted for the purpose of obtaining medical treatment, defendant disputed that the psyche claim entitled applicant to increased permanent disability.
In terms of the mechanism of injury, applicant was working on a gate when it fell on his foot. Afterwards, applicant went and opened several more gates before reporting what happened to co-workers in the building office. He declined to be taken to the ER and instead drove home before driving himself to Kaiser, where he underwent surgery the next day.
In rejecting applicant’s claim that the mechanism of injury constituted a violent act, the opinion of the WCAB turned on whether the mechanism of injury was “extreme or intense” comparable to other cases of this sort that did result in such a finding. The WCAB relied instead on the case of Zarifi v. Group 1 Automotive, where the WCAB held that a violent act did not occur when walking into a glass wall did not result in the loss of consciousness or the need for immediate medical treatment.
In other words, this was not intense enough, neither in the force of the blow or the resulting medical consequences, to qualify as a “violent” act.
What does that mean for us down in the trenches? There’s a good chance that your slip-and-fall, minor bump, less-serious specific injuries will not qualify for the psyche increase.
It also give incentive for defense attorneys to explore in greater detail the intensity of the blow and bring to a QMEs’ attention first-responder reports “Doctor, how serious was this blow at the time if it yielded these symptoms for the first responders?”
Now, all that being said, your humble blogger is a firm believer that this interpretation of 4660.1 to allow a non-criminal action to be considered a “violent” act is incorrect and defies legislative intent or even the plain meaning of the statute.
As reader W.A. pointed out previously, section 4660.1(c)(2)(A) provides that it’s not just a “violent act” but a “violent act within the meaning of Section 3208.3.” (Emphasis humbly added).
We’ve had 3208.3 for a while, and there is a veritable Russian novel’s worth of caselaw about what “violent” act triggers 3208.3 psyche injury compensability and defining a “violent act” as a “strong physical blow” is not “within” the meaning of 3208.3 but pretty far outside of it.
Furthermore, this blog has gone on at length about prior treatment of the term by the Court of Appeal.
Unfortunately, this issue, to wit, whether a strong blow can be considered a “violent act” for 4660.1(c) will have to go up to the Court of Appeal or the good folks in Sacramento before it can be brought in line with this blog’s self-important and self-aggrandizing interpretation.
And, when that happens dear readers, I will sing you all a song that will be stuck in your heads forever: “Greg was right, you were wrong, you should have listened all along.”