Court of Appeal Rules on Emotional Harm as a “Violent Act.”
Happy Friday, my dear readers!
Before we all check out for the weekend, I think it only fair to report to you that, at long last, we have new guidance on the meaning of the word “violent” when it comes to post-1/1/13 compensable consequence injuries for psyche add-ons, thanks to a recent Court of Appeals decision,
As practitioners from the pre-SB-863 days will remember, every single orthopedic injury came with sexual dysfunction, sleep loss, and psyche compensable consequence claims in an effort to frivolously drive up exposure and litigation costs. SB-863 sought to put an end to that by eliminating permanent disability for such claims, limiting permanent disability in such cases only to psyche claims, and then again, only when the injury involves (1) being a victim of a violent act; (2) being exposed to a significant violent act; or (3) a catastrophic injury. (See LC 4660.1)
For years, violence was defined as one would expect – a criminal act intentionally committed by another person. However, as early as 2016 the WCAB expanded the scope of a “violent act” to include a forceful blow, such as falling on a hard floor. Well, almost every slip-and-fall case became a “violent act” in that sense.
Well, just yesterday afternoon the Court of Appeal for the 4th District issued its published decision in Christrock Entertainment v. WCAB (Smith). In the Smith case, applicant was a fight promoter who had recently started living in the Bel-Aire neighborhood of Los Angeles and attended a show as part of his job duties. Inexplicably, he became emotionally distraught at some of the performance. The next morning he noticed he had a sore back and significant bruising on the palm of his right hand, which he attributed to the poor ergonomic set-up of the audience seating. He filed a claim for orthopedic injury to his low back (the bruising on his hand resolved shortly thereafter) but also filed a psyche claim as a compensable consequence, alleging that he felt that the impact of observing the show was so violent towards him that he was entitled to additional compensation for his psychiatric trauma.
At a psychiatric PQME evaluation, the evaluator noted that applicant was making wild claims that he had been recruited for an organization who is tasked with keeping the existence of extra-terrestrial visitors to the planet Earth a secret. He also made bizarre claims that the Earth was going to be attacked on Independence Day but that he was prepared to help defend it.
The WCJ and WCAB both rejected the claims for additional PD based on psyche, relying on LC 4660.1 and noting that an act of violence, though watered down by including any “forceful blow,” did require some sort of strike or impact: even a slap. But on applicant’s petition for a writ of review, the Court of Appeal reversed!
Citing recent theories from such academic institutions as UC Berkeley, the Court of Appeals noted that there was a growing consensus that speech, and in some cases the lack of speech, can be construed as violence. Accordingly, if subjective feelings are sufficiently hurt, the “violent act” requirement of 4660.1 can be satisfied. All that is required is credible testimony on the part of the applicant. The Court cited a list of other cases that recently came to the same conclusion.
Late last night, upon hearing about the Court’s decision, applicant made the following statement: “When this case started I felt I was being treated like one of the bad boys, but now I feel like a real prince!”
The employer, Christrock, has already stated it has no intention of seeking an appeal, which is bad news for defendant everywhere who would like to see this wrong righted.
You can get more context here, dear readers! Till Monday…