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Keyword: ‘3208.3’

COA: Compactor Falling on Worker NOT Sudden or Extraordinary; WCAB Reversed

February 5th, 2018 2 comments

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Just last Tuesday, the COA issued its (unfortunately) unpublished decision reversing the WCAB.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?

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WCAB Again Holds “strong physical force” Qualifies as Violent Act

April 7th, 2017 No comments

Happy Friday, dear readers!

Your humble blogger encourages you to check out an excellent column by Julius Young over at on the issue of violent acts and psyche claims.

The column has to do with the recent panel decision in the matter of Madson v Michael J. Cavaletto Ranches.  Therein, a truck driver involved in an MVA claimed a psyche injury (in addition to other injuries) when he swerved on the freeway and his truck rolled over.  He was pinned in the truck.  It of course did not help matters that applicant was claustrophobic and afraid the truck would catch fire because of its full tanks of gas.  After 40 minutes or so, he was rescued and, fortunately, survived to tell the tale.

Among the issues in this case is whether the mechanism of injury constitutes a “violent act” in order to allow an increase in permanent disability based on a derivative psyche claim.  Applicant also claimed that his psyche injury was the direct result of the mechanism, rather than a compensable consequence, but let’s focus on the violent act issue.

Labor Code section 4660.1 was amended by SB-863 to eliminate increases in permanent disability (and probably temporary disability) benefits for “sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof” in compensable consequence cases.  However, subsection (c)(2) provides an exception to being a victim of a violent act or a direct exposure to a significant violent act.

The WCAB made the news not too long ago when, in the case of Larsen v. Securitas Security Services, the term “violent act” was interpreted to mean “forceful blow” and not requiring the criminal or quasi-criminal conduct of another person.

In the  Madson matter, the WCAB granted applicant’s petition for reconsideration and relied on the Larsen opinion to concluded that a violent act need not be a “volitional act set in force by a human being with at least if not intent something more than mere negligence.”

The undersigned respectfully disagrees.

Let’s start with a simple question – was it the legislature’s intent in amending the Labor Code as part of SB-863, to make it harder to file a psyche claim?  Clearly, the answer is yes – if the Legislature wanted to make compensable consequence claims as easy or easier to prosecute, then the language would have said nothing or created a presumption.  Instead, the Labor Code now raises the bar for compensable consequence psyche claims.

What effect does an interpretation of “violent act” have when it includes any “forceful blow”?  Doesn’t every single claim except a CT or perhaps the most minor of back strains fall into the category of “forceful blow”?  Every fall, every trip, every specific injury where there is forceful contact would negate Labor Code section 4660.1’s heightened requirements.

Furthermore, 4660.1 has another word to be considered: “victim.”  The exception holds that “[b]eing a victim of a violent act…” allows compensable consequence psyche claims.  And how does Black’s law dictionary define victim? “Person harmed by criminal acts, attack target.”

And, of course, let’s not forget that the term “violent act” did not original with SB-863.  “Violent act” was already in use by Labor Code section 3208.3.  In fact, Section 4660.1 incorporates the term: “violent act within the meaning of section 3208.3.”

As discussed in this prior blog post, a violent act has consistently been defined to date as a criminal or quasi criminal act by one person against another.  Forceful blow doesn’t seem to qualify.

From the looks of it, though, it appears that one of the parties has filed for reconsideration, presumably the Defendant having been newly aggrieved by the WCAB decision.  Just like the Court of Appeal’s decision in the matter of Dreher, where a published decision was necessary to confirm that a wet sidewalk was not an “extraordinary” condition, perhaps defendants will need to take this issue up to reverse a growing trend of expanding the meaning of “violent act.”

May your weekends, dear readers, be free from both violent acts and forceful blows, as your humble blogger respectfully submits the two are not one and the same.

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Sudden and Extraordinary Proven by Applicant’s 12 Years of Experience

February 15th, 2017 No comments

Happy Wednesday dear readers!

Your humble blogger hopes you had a wonderful Valentines’ Day.  I used to be a real valentines’ day Grinch, but then I invested heavily in the flower cartels, the greeting card mob, and the chocolate teamsters, and now I’m all for it!

My favorite highlight from yesterday?  The Walter Sobcheck valentines rhymes (many thanks to Mr. KC). If you’re a fan of the Big Lebowski, take a look at #SobcheckValentines for a good chuckle.  For a bad chuckle, however, please proceed with this post.

Today’s post is about a recent panel decision, Guzman v. Carmel Valley Construction, SCIF.  The WCAB did not add much in denying defendant’s petition for reconsideration, but, fortunately for us all, your humble blogger has acquired the report and recommendation which lays out a lot of the facts and law.

The issue at hand was a crazy one – I mean it: applicant was alleging a psyche injury and defendant had raised the 6-month employment rule of Labor Code section 3208.3(d).  Although it appears uncontested that applicant was employed for a period shorter than six months, applicant alleged the mechanism of injury was sudden and extraordinary: while operating a soil compactor applicant hit a rock causing the soil compactor to fly up in the air and to land on applicant.

Applicant’s testimony was to the effect that in his 12 years of construction laborer work, he had used a soil compactor once per week, and he had never sustained an injury in those twelve years related to the soil compactor.  In fact, he subjectively never anticipated any risk of injury with a soil compactor.  The WCJ found that applicant’s injury was sustained as part of a sudden and extraordinary employment condition.

Because defendant offered no evidence of similar evince happening, let alone being commonplace, the WCJ relied on the uncontroverted testimony of applicant that he had never heard of such a thing happening in his 12 years in the industry.

This seems like a really good opportunity for the employer – the actual, insured, employer to assist.  The employer likely has several very seasoned managers and veterans in the industry who could advise on this point and probably reference prior cases involving OSHA or the workers’ compensation appeals board, even if out of California, to provide examples that these things do happen.

On the other hand, perhaps there really aren’t a lot of incidents out there.  Perhaps the safety manual for the soil compactor doesn’t cover this possibility.

Then, maybe, this really is an extraordinary event…

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WCAB Panel Articulates Limits on Good Faith Personnel Action Defense

August 8th, 2016 No comments

Hello dear readers!

There’s a case making a bit of buzz around our little bee-hive of workers’ compensation, and the sweet, sweet honey is that good faith personnel actions aren’t the might bears we thought they were… I’m out of bee analogies, folk – leave yours in the comments.

Anyways, the case going around is Ferrell v. County of Riverside where the WCAB panel held that good faith personnel actions, as contemplated by Labor Code section 3208.3(h), aren’t just any personnel activities, but are more related to specific interactions between management and employees.

In Ferrell, the employer needed to consolidate its workforce and so applicant, along with her entire department, was transferred to a different department, where they became probationary employees, despite a tenure of more than five years.  She had a new director which she apparently didn’t like, and had to share a car instead of having one assigned to her individually.  Other equipment was pooled and restricted as well.

She claimed this caused her stress and she sought treatment, but was eventually laid off and settled her workers’ compensation case.  The Ferrell opinion that we’ve got to work with is because a lien claimant sought reimbursement for the treatment provided to Ms. Ferrell.

Defendant raised the good faith personnel action and lost at trial, then promptly sought reconsideration.   The WCJ’s reasoning that the budgetary needs of the employer that lead to stressful work conditions were not “personnel actions” as contemplated by Labor Code section 3208.3.  The panel opinion agreed that “[t]he distinction between the effect of working conditions, and the effect of an action directed towards an individual’s employment status” is what made this claim compensable.

Your humble blogger would respectfully direct his enlightened readers to the Court of Appeal opinion in Michael Brooks v. County of SacramentoTherein, the psyche AME found that an internal affairs investigation made up 1/3rd of the cause of applicant’s psyche claim, and another 1/3rd was from Mr. Brooks’ feelings about his lack of support from his supervisors during the investigation.  The Court of Appeal ruled that Mr. Brooks’ “feelings were his injury, or symptoms of the injury, not the cause of the injury.”

In this case, certainly some portion of the psyche claim was related to the actual working conditions which can be stressful.  After all, stressful jobs cause stress, and stress can be a compensable injury.  But some of the other factors involved here, as per the WCJ’s report, appear to be reactions to good faith personnel actions.  For example, the transfer of employees (rather than simply laying them off) is a good faith personnel action.  As is having to place employees recently transferred on probationary status.  As is any reaction to the management decisions of her new director.

The Brooks opinion tells us that a subjective reaction to a good faith personnel action is part of that action.  How much of any psyche claim is going to be subjective reactions to good faith personnel decisions, and how much will be caused by general stressful conditions?

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WCAB Panel Holds “Forceful Blow” Violent Enough for Psyche Injury

June 3rd, 2016 No comments

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.

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C&R’d Ortho Injury Contributes to Psyche Causation

May 13th, 2016 No comments

Happy Friday the 13th, dear readers!

Do you guys like psyche cases?  I do! One would be crazy not to (get it?).

In a case that had somewhat of a “crazy” result for defendants recently, the Court of Appeal denied review of the WCAB’s decision upholding a finding of compensability, after applicant amalgamated the psychiatric conditions resulting from two orthopedic injuries to justify a predominant cause of the psyche claim.

The case is that of Van Dyk v. California Dep’t of Corrections and Rehabilitation.  Applicant sustained a back injury in 2005 and then filed a CT claim through 2012 to his back AND psyche – the latter of which was denied by the defendant.

The psyche PQME found that the predominant cause was the combined results of applicant’s two orthopedic injuries, allowing applicant to claim that the psyche injury survived the threshold test of Labor Code section 3208.3(b), in that actual events of employment were predominant as to the causes of the psychiatric injury.

Your humble blogger did a basic EAMS search and, without revealing the case number, found a case that seemed to match the information available, reflecting that a C&R was approved for the 2005 injury back in 2009.

But the PQME in the second claim found that the psychiatric consequences of the 2005 injury contributed to the 51% threshold for making this a compensable claim.

Picture this, dear readers: yes you can C&R your orthopedic case, but if an applicant should ever decide that his or her orthopedic injuries… even the memory of the orthopedic injury, should cause a psychiatric condition, the C&R would serve as no shield for the defense.  Who would settle potential exposure for 104 weeks of temporary disability if those same weeks are on the table for psyche instead of ortho injuries?

But that’s what’s happening here: a case that was presumably the subject of a compromise and release is being used to justify a psyche claim.  Absent a finding by the PQME that the non-C&R orthopedic injury is causing 51% of the psyche claim, this should have been barred by Labor Code section 3208.3.

And with that, dear readers, I wish  you a wonderful weekend!

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COA: Wet Sidewalk NOT Extraordinary Condition

April 27th, 2016 No comments

Happy Wednesday, dear readers!

As my beloved followers, subscribers, and even the occasional anonymous lurker who is too shy to drop me a line might recall, this blog previously reported on the case of Dreher v. WCAB, wherein the WCAB held that a wet sidewalk constituted an “extraordinary” condition for the purposes of defeating Labor Code section 3208.3(d)’s requirements for psyche claims following less than six months of employment.

In that case, a split WCAB panel held that because applicant was surprised by how wet the sidewalk was, it constituted an “extraordinary” condition, and allowed him to recover on his psyche claim.  The “extraordinary” nature of the claim was further bolstered by extraordinarily catastrophic injuries resulting from the event.

Well, the Court of Appeal has weighed in, and in a published decision, reversed.  The COA expressly rejected the notion that analysis of an event as extraordinary (or not extraordinary) does not turn on “the nature of the injuries resulting from the incident.”  Continuing, the opinion reads “although Dreher’s injury was more serious than might be expected, it did not constitute, nor was it caused by, a sudden and extraordinary employment event… Dreher’s slip and fall was the kind of incident that could reasonably be expected to occur.”

With respect to burden of proof, the Court of Appeal held that “[t]o the extent the WCAB’s decision can be read to place the burden of proof on the employer to demonstrate that the accident was the result of a ‘routine or ordinary employment condition,’ it was incorrect.”

So what do we take away from this?  The Court of Appeal, in a published and thus citeable decision, held that the burden of proof on the extraordinary nature of the mechanism of injury falls squarely upon the shoulders of the injured worker.

Furthermore, it appears that the extent of the injuries resulting from the mechanism are entirely irrelevant to the analysis: effects from a stubborn papercut to total and permanent paralysis do not affect the compensability of a recent hire’s psyche claim.

All in all, dear readers, not a bad bit of news for the defense community.

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Personal Relationship At-Work Harassment Results in Compensable Claim

March 25th, 2016 No comments

Happy Friday, dear readers!

Once, many years ago, your humble blogger was at a diner in San Francisco (Mel’s Drive In, to be precise).  When my lady friend went to use the restroom, Bill Murray, the famed actor, came out of nowhere and walked right up to my table.  He took a French Fry from my plate and, as I stared at him in shock, he said “no one will ever believe you” and walked out of Mel’s before my lady friend returned.

To this day, no one believes this story, proving Bill Murray to be a man of both wisdom and action.  Sometimes, in the bitter watches of the night, I myself doubt if this really happened.  Actually, as I write this, I’m growing more and more certain that this didn’t happen.

Anyways, I have a story for you that is a bit more believable – the Court of Appeal recently denied review in the case of Sanchez v. City of Santa Barbara.  Applicant claimed a psyche injury resulting from workplace harassment (the growing trend is to call this bullying) by a co-worker with whom applicant had a long-standing and personal relationship.

Defendant argued that the workplace was merely a stage for a personal dispute, and that this harassment, though occurring geographically at work, was not an actual event of employment.

By contrast, applicant argued that this was harassment at work to the point that the campaign of harassment qualified as “actual events of employment” as contemplated by Labor Code section 3208.3(b)(1).  The QME found that 20% of the cause was “non-industrial stressor” while the remaining 80% was due to harassment by the co-worker.

The WCJ concluded that applicant’s complaints did not meet the threshold of AOE/COE and ordered that she take nothing.  However, the WCAB granted reconsideration, reasoning that management and workplace forces had become so integrated into the personal dispute, as to make the dispute work-related.  Apparently, the motivation to harass applicant was also based on the perception that she had spread rumors about the alleged harasser at work.

The Court of Appeal denied review.

Ok, so we have here a case where a purely personal relationship resulting in harassment has become compensable because (1) it occurred at work; (2) it all started because one party believed the other party spread rumors at work; and (3) management became involved in attempting to mediate and stop the harassment.

I’m starting to think that maybe Bill Murray did take one of my French Fries.

If there’s a line here your humble blogger is having a hard time finding it, because all of this still looks personal to me.  If an employee is injured at work by a violent spouse who shows up at the workplace, does the injury become industrial if the employer renders first aid?  If the violent spouse showed up at work because of the perception that the victim was spreading rumors about him or her at work, does that make this an industrial claim?

Your humble blogger respectfully submits that all of the facts that make this purely personal dispute industrial go back to the workplace being the stage for a personal dispute, which should have been found non-compensable.

I know it is shocking to my readers, and totally uncharacteristic of my cold, unfeeling, defense-attorney heart, but I think the WCJ’s take-nothing should have been allowed to stand.  If nothing else – if the facts are teetering on a fence, the WCJ was in the best position to receive witness testimony, observe witness demeanor, and thereby get a real understanding of whether, as this was all happening, the parties really perceived this as purely personal or somehow related to work.

Have a good weekend!

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Good Faith Personnel Defense Survives “Media Scrutiny” Challenge

February 1st, 2016 No comments

Happy Monday, dear readers!

We’re all familiar with the Labor Code section 3208.3(h) defense against psyche claims for psyche injuries “substantially caused by a lawful, nondiscriminatory, good faith personnel action.”  But what constitutes good faith?

In the case of Stolp v. California Dep’t of Developmental Services, applicant, a peace officer, was called with his partner to make contact with a staff member accused of “Tasing patients.”  Upon contacting the staff member, applicant confiscated a loaded handgun and a Taser gun but otherwise let the staff member go.  Patients were later found to have sustained “thermal burns” which would not have been caused by the Taser gun.

Six months later, an internal affairs investigation was launched into Mr. Stolp’s handling of the situation, and a while after that, a journalist picked up the story and publicly criticized the handling of the “Taser incident.”

The internal affairs investigation described Stolp’s actions in fairly harsh terms, and recommended a 10% pay reduction for 12 pay periods.  Applicant began seeing a psychologist, who documented experiencing symptoms as a result of the IA report.

Applicant’s psyche claim was denied citing the good faith personnel defense, but applicant countered with the claim that the IA investigation was not in good faith because it was done in response to media attention.

What is the standard for good faith, anyway?  The Court of Appeal in Northrop Grumman Corp v. WCAB, Graves (2002) 103 CA4th 1021 held that the standard is defined as “done in a manner that is lacking outrageous conduct, is honest and with a sincere purpose, is without an intent to mislead, deceive, or defraud, and is without collusion or unlawful design.”  Such was the language cited by the WCJ in finding that the internal affairs investigation was a good faith personnel action.

The WCJ further found that other employees, including supervisors and co-workers, were also subject to personnel action, which militates against a finding of discrimination.

It’s perfectly reasonable that after a harsh and damning internal affairs report, the subject of the report might develop psychiatric or other symptoms.  However, the defense is there for a reason – to allow employers to meet their various business and staffing needs without fear of an expensive workers’ compensation claim.

Of interest here is the fact that a whole lot of heads rolled for the “Taser incident,” and applicant did not receive the worst of the consequences.

But, hypothetically speaking, if the internal affairs investigation was undertaken only after being prompted by bad publicity… would that invalidate the good-faith personnel defense?  The investigation itself might start because of outside influence, but without evidence that the investigation was performed or the results obtained in such a manner as to be tainted with appeasing the public, wouldn’t the defense still hold?

In this case, the factual timeline showed that the internal affairs investigation was started six months or so after the incident, but another five months or so before the negative media attention, so the issue isn’t really present in this case.

How far do you think a defendant can stretch 3208.3(h)?

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January 13th, 2016 2 comments

And then, suddenly… a sidewalk!

Have you had an opportunity, dear readers, to review the case of Dreher v. Alliance Residential?  It’s a recent panel decision that was denied review by the Court of Appeal.  Applicant sustained an admitted physical injury, but defendant contested the psyche claim, after applicant slipped and fell on his 74th day on the job.  Apparently, it had been raining that day, and the sidewalk was wet.  Defendant raised the defense of Labor Code section 3208.3(d), contesting that applicant had not been employed for six months, so psyche claim!

As the injury occurred in 2009, the requirement of this to be a “catastrophic” injury, as articulated in Labor Code section 4660.1(c), would not apply.  But what about the exception found in 3208.3(d) – was a wet sidewalk a “sudden” AND “extraordinary” condition?

Initially, the WCJ found that a wet sidewalk was not both sudden and extraordinary, but applicant appealed, and the split WCAB panel granted reconsideration.  The majority cited Matea v. WCAB (2006), reasoning that if lumber falling on a Home Depot employee constitutes a sudden and extraordinary employment condition, so could a slip on the sidewalk.  On page 9 of the majority opinion, the WCAB noted “defendant did not submit any evidence to show that applicant’s injury was a routine or ordinary employment condition… [a]pplicant testified he was surprised  by the slick surface of the walkway and did not expect it to be slippery because the other concrete walkways on the premises had a rough finish.”

The majority also cited SCIF v. WCAB (Garcia) a 2012 Court of Appeal decision previously discussed on this most humblest of blogs, for the proposition that the ultimate result of the injury should be considered in determining whether or not it was extraordinary.

By contrast, the dissenting opinion reasoned that a slip and fall “although unfortunate, is not the type of event that is totally unexpected; rather, it can be fairly described as a regular or routine occurrence.”

Let’s look at some of the similar cases we’ve seen which have discussed the “extraordinary” language of 3208.3

  1. Burning one’s hand at the dry-cleaner facility was common enough so as not to be extraordinary;
  2. Falling from a 24′ ladder as an avocado picker was not extraordinary;
  3. A 250lb truss falling on a carpenter was not extraordinary;
  4. A roofer falling from a roof was not extraordinary (Bajanjargal v. WCAB)

Your humble blogger, as predicted, is with the dissent on this one.  I would submit to you if your job were simply to be a human being, a slip and fall on a sidewalk, wet or otherwise, would not be an extraordinary employment condition.  Seriously, folks, just imagine that – a group of people gathered around a sidewalk, mesmerized by it being wet after rain, muttering to themselves “so extraordinary…”

But, not everyone agrees with your humble blogger…

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