WCDefenseCA

Happy Friday, dear readers!

Well, we made it yet another week and the weekend is just around the corner.  So, I figured I’d take a “shot” at bringing you a relatively unorthodox blog post today, and it’s about guns!

Naturally, since June 24, 2022, when the United States Supreme Court issued its ruling overturning Roe v. Wade, almost all attention has been focused on that decision and understandably so.  Few issues in American political discourse trigger such strong emotions and such polarizing disagreements.  Further, the issue is rarely one that is hypothetical but has real world applications.  But for this blog post, I direct you to another decision: New York State Rifle & Pistol Association Inc. v. Bruen wherein the Supreme Court struck down New York’s law regarding concealed carry permits.  A law nearly identical to that of California.

Although the feelings regarding this decision are many and fractured, one area of near unanimous agreement is about the result – this ruling will increase the frequency of concealed carry permits issued to private citizens.  The California Attorney General issued OAG-2022-02 on June 24, 2022, directing that “[p]ermitting agencies may no longer require a demonstration of ‘good cause’ in order to obtain a concealed carry permit.”

As a result, are we going to see more firearms in the workplace?  May employers already have prohibition on bringing firearms to work, but some don’t or have no mechanism of enforcement given that the very nature of the issue is that it is concealed.

A reminder, dear readers, that Labor Code section 3208.3 has a lower standard for AOE/COE for psyche claims when the applicant sustains “direct exposure to a significant violent act” (from 51% to 35-40%).  In all likelihood, any violent act involving a gun is going to be considered a “significant violent act.”

Further, Labor Code section 4660.1 allows for increased permanent disability for a compensable consequence psyche claim where there is “exposure to a significant violent act within the meaning of Section 3208.3.”

In light of the high probability that a growing number of Californians will be carrying firearms on their person, employers may want to determine if the circumstances merit adoption of policy regarding firearms at work.  Being the cynic and devil’s advocate that he is, dear readers, your humble blogger can’t help but wonder if failure to proactively address the potential for firearms at work might lead to Serious and Willful Misconduct claims as well.

Now, all that being said, there are some advantages to having sane, trained, and law-abiding employees armed at work.  For example, in 2015 Syed Rizwan Farook and Tashfeen Malik allegedly carried out the San Bernardino massacre, murdering 14 and injuring some 22 co-workers in a horrific act of terrorism.  Not one of the victims was armed and all were rendered defenseless. Similar mass shootings in California have typically had a defenseless pool of victims.  But each employer will have to decide for itself, using its best knowledge of its employees and the dangers of the world, where the greater risk lies: in disgruntled employees and accidental shootings, or in intentional violence and no opportunity for mitigation. 

It is truly a sad thing that this is the calculus we are faced with, but face it with must.

So, on that cheerful note, your humble blogger wishes you a good weekend and hopes to see you back here early Monday morning!

Happy Monday, dear readers!

It’s beginning to look a lot like Christmas – Mariah Carey’s “All I want for Christmas is You” is blasting from every store and radio station, Amazon boxes are piling up on porches, and e-mail auto-replies are outnumbering actual messages.  What a wonderful season!

Now, while the above is the norm now adays, the workers’ compensation system has a strong opinion on what is normal and what is… extraordinary.  That’s right dear readers!  This is a post about the sudden and extraordinary exception to the 6-month employment rule of Labor Code section 3208.3(d).

The basic rule is that there is a bar to psychiatric claims for employees with a tenure of under 6 months, but not if the psychiatric injury is the result of a “sudden and extraordinary employment condition.”  The case law is fascinating in this field because we get an interesting peek at to what is considered normal and what is considered extraordinary.  For example, a wet sidewalk is not an extraordinary condition (it does rain, after all). 

The case law has also established that it is applicant’s burden to prove that the employment condition was extraordinary, and that it is the employment condition that must be extraordinary, not the catastrophic results of the injury.

So now consider the case of Emery v. Hertz Corporation, a recent panel decision.  The WCJ determined, after trial, that applicant’s psychiatric injury was caused by a sudden an extraordinary condition, defeating the 6-month employment bar.  The mechanism?  An irate customer yelled at applicant over the phone, threatened to sue, and then also threatened to come to her worksite and teach her a lesson about customer service.  Applicant also claimed the caller threatened to “shoot” her or “hurt” her. 

Generally speaking, workplace violence is an “extraordinary” event, with the exception of some professions that deal with violence regularly, but what about threats of violence?

The trial Judge found that a credible threat of workplace violence qualified as “extraordinary,” relying on the standard set out in Matea v. WCAB  — “the types of events that would naturally be expected to cause psychiatric disturbances even in a diligent and honest employee.”  If you got a call from an angry customer threatening to come to your workplace and shoot or hurt you, would that be likely to cause a psychiatric injury?

The WCAB affirmed the trial judge’s determination that 3208.3(d) does not bar the psyche claim. 

So, the takeaways from this claim?  A remote (telephone, email, etc.) threat of workplace violence that an employee subjectively finds credible, in a profession where workplace violence is not expected will likely be considered a “sudden and extraordinary” employment condition.

Ho, ho, ho, dear readers!

Gooooooood morning dear readers!

Your humble blogger loves the smell of workers’ compensation litigation in the morning, and today is a magical day for certain.  Christmas is just around the corner, New Years’ isn’t far behind, and in just a couple of weeks everyone will think themselves so clever for saying “hindsight is 2020, and now 2020 sure is in our hindsight!”

So, not unlike Soviet Santa who brings freezing children lumps of coal to great soviet cheers, I bring you a panel decision today reversing a “take nothing” of a psyche claim.  But this isn’t just any case… this one is interesting to say the least.  It is the split pane opinion in Munoz v. Department of Corrections.

Applicant, a case records analyst at a corrections facility, alleged a psychiatric claim as a result of her employment with the department of corrections.  The PQME opined that the psychiatric condition was caused 35% by an e-mail to applicant that there would be a meeting (in all probability to follow up on a reprimand/corrective counseling) and 35% from hearing about her husband’s friend being attacked.  Another 10% was assigned to receiving a reprimand. 

The employer maintained that the psychiatric condition was barred by the non-discriminatory good-faith personnel action defense of Labor Code section 3208.3.

At trial, the WCJ agreed, only to have the WCAB majority split panel reverse on appeal!  So what happened?

The WCAB panel held that under the en banc law set out by Rolda v. Pitney Bowes, Inc., the analysis goes as follows:

1. Does the alleged psychiatric injury involve actual events of employment?
2. Does competent medical evidence establish the required percentage of industrial causation?
3. Were the actual events of employment personnel actions?
4. Are those personnel actions lawful, nondiscriminatory, and made in good faith?

The parties did not dispute that the 10% original reprimand was a non-discriminatory good-faith personnel action, but what about the e-mail that triggered such anxiety?  Does the email that there would be a meeting to follow up on a reprimand count as a non-discriminatory good faith personnel action?

The email telling applicant and her staff of an impending meeting did not include the details of what would be discussed at the meeting, but applicant suspected it would be for further reprimands.  The email made her upset and anxious.  Despite all this, the employer witnesses testified that the meeting was a general one to go over procedures, and not to hand out reprimands or further counseling.

Although applicant’s fears regarding the substance of the meeting were unfounded, they still had a damaging effect on her psyche, contributing to the industrial injury.

Well, the WCAB majority reasoned that a routine meeting is not a “personnel” action as contemplated by Rolda and the Labor Code, so a reaction to an email about a meeting or the meeting itself, such as in this case, cannot be the basis for the defense.

But, as your humble blogger learned in law school so many, many years ago – if you want to know what REALLY happened, read the dissent!

The dissenting voice cited County of Sacramento v WCAB (Brooks) and Bray v WCAB for the proposition that applicant’s subjective response to a good-faith, non-discriminatory personnel action is not the liability of the employer.  In fact, the general holding in those cases is that the reaction to the action is a symptom of the injury, not the injury itself.

Accordingly, applicant’s stress, panic, anxiety, and worry after receiving the e-mail regarding a meeting were the symptoms of the psychiatric injury – the injury itself being not the e-mail, but the good faith, non-discriminatory personnel action to reprimand her for some misconduct.

What do you think, dear readers?  What is the distinction between an applicant’s subjective response to a good faith, non-discriminatory personnel action and the actual action?  Do subjective responses to events of employment qualify as “actual events of employment”?

Happy Wednesday, dear readers!  You know, sometimes your humble blogger has to take a break from his usual hamster wheel of workers’ comp defense to reflect on what a truly blessed childhood he had.  For example, there are people in this world that did not have the absolute privilege of growing up with a toy like Stretch Armstrong.

Stretch was exactly that – a super elastic wrestler toy, and every child who played with it inevitably asked the fundamental question: just how much could Stretch Armstrong be stretched?

Well, now we’re all grown-ups and we have the grown-up version of Stretch Armstrong: workers’ compensation law.  How far can you stretch workers’ comp?  Well, as it turns out, even though our beloved swamp will stretch, and stretch, and stretch… it does have a limit.  Though rarely seen, it is there!

That brings me to the recent panel decision of Gomez v. State of California Department of Corrections.  Therein, applicant argued that “the behavior of [her] husband in response to her positive TB test constitute actual events of employment for the purposes of determining causation under Labor Code section 3208.3.”

Yeah, I had to read that a few times to follow it myself, so if it doesn’t make sense right away, or if you find yourself squinting in disbelief, I’m right there with you.

Briefly, the facts are straight forward: IW tests positive for tuberculosis and the claim is accepted as industrial.  She gets a nine-month course in treatment.  Her husband doesn’t respond to this well and the marriage falls apart, and, ultimately, there’s a divorce.  The psyche QME concluded that the predominant cause of her psychiatric impairment was the response of her husband, which, in turn, was due to her industrial injury.

Of course, that means that the predominant cause of the psychiatric compensable consequence was the industrial injury, right?

Now, of interest here, is that the psychiatric condition was NOT caused by the diagnosis of or the treatment for the tuberculosis, but purely how applicant’s husband reacted to the diagnosis, and, presumably, applicant’s reaction to her husband’s reaction.

The matter proceeded to trial and the WCJ agreed and found the psychiatric injury to be a compensable consequence.  Naturally, defendant sought reconsideration.

The panel first started by citing Rodriguez v. WCAB for a definition of a compensable consequence: “a secondary incident which, although perhaps a new and distinct injury, is not a new and independent injury but rather the direct and natural consequence of the primary incident.”  (emphasis added by WCAB panel).   The commissioners then reasoned that because Labor Code section 3208.3 imposes a higher threshold of compensability for psychiatric injury, the reaction of applicant’s husband to her industrial injury “was not a ‘direct and natural’ consequence of her industrial injury.  To the contrary, the WCJ in her Report characterized the reaction as ‘bizarre’…”

The commissioners reversed and entered a finding that the psychiatric claim was non-industrial.

So, your humble blogger is naturally pleased with the result – this is a stretch too far and the conclusion is a proper one.  But what if we tweaked the facts a little bit?  Let’s say a hypothetical applicant is in the same scenario, but the hypothetical applicant’s spouse reacts with domestic violence resulting in serious injury.  There is no higher threshold for orthopedic injuries as there are for psychiatric ones, so does a compensable consequence broken arm as a result of an angry spouse’s attack become admissible?

The cited language in Rodriguez seems to militate against such a finding – do we, as a society, expect that the direct and natural consequence of an injury is to incur violence from a spouse of family member?  I would think not and would certainly hope not.

What do you think, dear readers?  How far does the “Compensable Consequence Stretch Armstrong” toy really stretch?

Straight on to Friday, dear readers!

Happy Wednesday, dear readers, and to those of you suffering the pangs of hunger on this day of atonement, Gmar Tov!  Well, have no fear, dear readers, for your humble blogger is here to help pass the time.

So let’s talk about psychiatric injuries.  In the 90s, kids would always say things like “I believe you… psych!” which meant they didn’t really believe you. Easy to remember, hurts one’s feelings every time.  As great as this was on the schoolyard, it doesn’t translate so well as an affirmative defense in workers compensation.

Nevertheless, the defense community in California is truly blessed by an affirmative defense that rarely fails: the good faith, non-discriminatory, personnel action defense of Labor Code section 3208.3(h).  The basic idea is that when you’re tallying up the causation of a psyche injury, any part of the psychiatric condition caused by a good-faith, non-discriminatory, personnel action doesn’t get added to the stack of causation, which makes meeting the threshold of compensability a bit harder.

This was explored with a good explanation of the steps of analysis and process in the panel decision of Rodriguez v. County of Riverside.  Therein, the WCAB commissioners kicked a “take nothing” down to further develop the record.  But in so doing, provided some guidance for us lowly practitioners in the trenches in handling psyche claims.

The psyche QME in this case testified to causation of the injury as follows by breaking it down into various events and interactions at work, including “applicant’s refusal of a special project.”

The Panel first cites the case of Rolda v. Pitney Bowes Inc., a 2001 en banc case, explaining that the process should be followed thus:

The QME/AME (1) lists all factors of a psychological injury; (2) assigns a percentage of causation to each factor; (3) lists all factors causing psychological permanent disability; and (4) addresses the percentage of causation that each factor contributes to the permanent disability.

At that point, the WCJ determines whether each factor constituted an actual event of employment, and, if so, whether those factors that were actual events of employment were lawful, nondiscriminatory, good faith personnel actions.

If the remaining factors after filter 1 (actual events of employment) and 2 (not covered by the good faith personnel action defense) still meet the causation threshold of 51% or 35% (in cases of violent acts, etc.) then the claim is compensable (outside of any other affirmative defenses).

The panel further clarified a personnel action as “conduct attributable to management in managing its business including such things as done by one in authority to review, criticize, demote, transfer, or discipline an employee in good faith.”

The panel returned the case to the WCJ to have the medical-legal evaluator and the WCJ confirm to the process outlined above.

One thought your humble blogger has to share with you about this matter and many similar to it.  Words and phrasing matters a lot – and sometimes parties engage in symantics: it wasn’t the good faith personnel action that triggered my psyche injury… it was my reaction to the personnel action that caused it, so the defense doesn’t apply!

Well, don’t we all remember the Court of Appeal decision in County of Sacramento v. WCAB (Michael Brooks)?  This was a 2013 published decision wherein the Court of Appeal held that “The Board’s causation analysis treated Brook’s ‘feelings that he was unsupported by his supervisors’ as a cause of psychiatric injury, as did [the QME].  In reality, however, his feelings were the injury, or symptoms of the injury, not the cause of the injury.”

In short, a reaction to a good faith personnel action is not a “cause” of a psyche injury, but its symptoms.

Anyways, dear readers, just more to think about – I’ll see you here bright and early Friday morning!

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.

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.”

Alrighty, dear readers, we made it through another week! Congratulations.  If you make it through this Friday the 13th, you will deserve twice the congratulations!

Often enough, the fun ride we on the defense have to endure in California’s workers’ comp system can lead to filing a psyche claim (thus perpetuating the system…)

Speaking of psyche claims, one of your humble blogger’s beloved readers let me know about a recent panel decision, Kessler v. Gallo Winery.  Applicant stipped out a back injury from 2011, and then filed a timely petition to reopen for new and further disability because his condition has allegedly worsened.

Applicant then filed a CT injury to his back and to the psyche.  Defendant contested the psyche and the matter proceeded with the usual course of litigation.  The psyche AME concluded that 90% of the psychiatric injury was caused by his work (and injuries resulting from work) but that the causation should be split three ways as to the specific, the CT, and a prior injury form 1989.

When the WCJ found a compensable psyche injury, defendant sought reconsideration arguing that since no individual injury could meet the predominant cause standard of Labor Code section 3208.3, there could not be a compensable psyche claim.  After all, since predominant cause is more than 30%, isn’t the defense set here?

The WCAB rejected the argument, reasoning that the crux of the matter lay in comparing causation of permanent disability for apportionment vs. causation of injury.  By the WCAB’s reasoning, because 90% of the psyche injury was industrially caused, the threshold was met and the psyche claim should have been compensable.

Now, I’ll be the first to admit that I don’t know the first thing about workers’ compensation law or the Labor Code, but your humble blogger can’t seem to follow the logic here.

A long, long time ago, your humble blogger posted the case of Monty Lewis v. WCAB, a 2011 panel opinion in which the WCAB concluded that when causation of a psyche claim was 35% caused by one employer and 65% caused by a subsequent employer.  Applicant was defeated in his claim against the first employer because there was no predominant cause and the second employer raised the 6-month rule to bar the psyche claim.  So the applicant gets nothing… NO SOUP FOR YOU!

But Kessler got soup – why?  Clearly, in the Monty Lewis case, the psyche injury was 100% industrial, it was just carved up by different employers.  In Kessler, the 90% industrial causation was carved up by different dates of injury.  What’s the difference?

Well, employers can only be held liable for the injuries sustained during the tenure of their employment of the applicant.

In any case, the authority on this doesn’t seem that iron clad – from what your humble blogger could pick up from a check of the practice manual, the authority that multiple injuries for the same employer can be combined to satisfy the predominant cause requirement is from writ denied and panel decisions – hardly binding authority (the case cited by the WCAB in Kessler was a writ denied opinion as well).

What do you think, dear readers – is this a losing battle, or should we be encouraging taking this up to the Court of Appeal to get a binding opinion on this issue?  Given the Court of Appeals’ track record in rejecting “but this is just the way we do things in workers’ comp” as a guideline for interpreting the law, I am naively optimistic that we would get a positive result.

Have a good weekend!

Happy Thursday, dear readers (or, if you like, pretend it’s Wednesday and this blog post is not one day late)!

Your humble blogger grew up in a world that prominently featured the lovable Nintendo character, Kirby.  Kirby, presumably a sentient marshmallow, could obtain the powers of his enemies by inhaling them, and go about his merry day.

But, today, I am not here to tell you of Kirby the marshmallow, but rather Kirby, the case of Kirby v. Contra Costa Water District.

Therein, applicant claimed to have sustained a psyche injury related to work under the supervision of two of defendant’s supervising employees.  The PTP and the Psyche QME both recommended a change in department to avoid a “deleterious effect on his psyche.”

Naturally, defendant raised the affirmative defense of good faith personnel action, arguing that since the psyche claim was at least substantially (if not totally) caused by a non-discriminatory, good faith personnel action as contemplated by Labor Code section 3208.3(h), the claim was not compensable.

At trial, the witnesses provided the basis for the trial judge to conclude that 75% of the cause of the psychiatric injury was actual events of employment, and not a good faith personnel action.

The report and recommendation, after citing the entire text of the John Godfrey Saxe poem regarding a small number of blind men describing an elephant, (“[s]o, oft in theological wars, the disputants, I ween, tread on in utter ignorance, of what each other mean, and prate about the elephant, not one of them has seen!”), rejected defendant’s argument that the psychiatric injury, if there was one, was due to applicant’s misperceptions of work events, rather than the actual work events.  As your humble blogger’s favorite example goes, “well, he asked me for a glass of water so what he really means is that he wants me to drown.”

However, as the applicant credibly testified to specific events, and many of them, that occurred throughout the course of his employment, and these were not denied by the defense witnesses, there seemed sufficient evidence to find that actual events of employment caused the injury.

In particular, the WCJ noted that, based on the medical-legal evidence, the “good faith personnel actions” don’t make up nearly enough of the causation to warrant the defense; most of it being harassment from subordinate employees.

From your humble blogger’s own experience, the difference in accounts between the facts and history of employment relationships can sometimes lead one to believe that these are two separate cases.  Employers and employees remember (or claim to remember) things very differently, and sometimes it really is an issue of credibility.

Fortunately, this day in age allows more and more of these instances to be electronically recorded through e-mails.  An injured worker need only document the bad things that happen with an e-mail to HR to complain, and there exists an almost permanent paper trail.  Perhaps in some cases, the absence of such written complaints should be read as evidence of absences [of those events].

In any case, the good faith personnel defense is not, unfortunately, a panacea for all industrial psyche claims.  Tolerating harassment by subordinates is not, necessarily, a good faith personnel action.

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?

Happy Friday, dear readers!

Your humble blogger encourages you to check out an excellent column by Julius Young over at workcompcentral.com 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.