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Ivan [and] the Terrible [Paper Cut], or is this Psyche Injury “Catastrophic”? [Part 3 of 3]

November 7th, 2014 No comments

Here were are again, dear readers.  Some have come willingly; some don’t know how to make the “unsubscribe” button work on their e-mails (it’s just there for show, dear readers – you’re stuck with me for good!).  Whichever way you made it here, it’s time to wrap up the story of Ivan and his totally permanently disabling paper cut injury.

Labor Code section 3208.3(d) provides that, for a psyche claim to be compensable, an injured worker must have been employed at least 6 months, unless the injury was caused by a “sudden and extraordinary employment condition.  Leaving aside the 3208.3 defenses involved in this case, and boring poor Ivan with the particulars of what is considered sudden and what is considered extraordinary, do these rules still apply?

Is it enough to show that there is a catastrophic event, under Labor Code section 4660.1, regardless of the applicant’s tenure?  Can an injury be catastrophic under section 4660.1, and yet not sudden and extraordinary in the meaning of 3208.3(d)?  And what effect do these moving parts have on the benefits to which an injured worker may be entitled?

The language of 4660.1 suggests that the measurement of the operative words, “catastrophic” refers to the injury, or rather the physical effects of the injury – paralysis, loss of a limb, severe burns, severe head injury.  By contrast, section 3208.3(d) discusses a “sudden an extraordinary employment condition.”  Furthermore, while the failure to establish at least 6 months of employment or a sudden and extraordinary employment condition precludes the recovery of any “compensation,” the failure to establish a catastrophic event merely precludes any increase in impairment due to the psychiatric injury.

Section 4660.1(c)(1) specifically provides that “[n]othing in this section shall limit the ability of an injured employee to obtain treatment for … psychiatric disorder, if any, that [is] a consequence of an industrial injury.”

So, in other words, if all that you’re missing is proof of a catastrophic event, Ivan may be able to secure the right to treatment, but if Ivan’s employment was less than six months in length and the injury wasn’t caused by a sudden and extraordinary employment condition, Ivan may be out of luck completely.

But… where does that leave temporary disability benefits?  TTD isn’t medical treatment, as specifically protected by section 4660.1(c)(1), yet it’s not really an increase in impairment, as excluded by section (c)(2).  A good defense attorney would argue that if the legislature wanted to protect temporary disability benefits, the legislature could have done so as did for medical treatment.  But, at the same time, any applicant’ attorney would likely argue that if the legislature wanted to exclude temporary disability benefits, it could have done so as well, like it excluded any increase for impairment.

At this point, with little to no authority on the subject, it looks like an injured worker could make it past the hurdles of 3208.3 but fail to make it past the test of 4660.1, and thereby become entitled to temporary disability and medical treatment, but not permanent disability.

In Ivan’s case?  It may be a hard sell.  His three-month tenure with the paper factor probably precludes any psyche claim, as being barred by Labor Code section 3208.3.  But, let’s say his attorney manages to persuade a WCJ that 4660.1 renders 3208.3 inoperative, or perhaps that the slip-and-fall and the fluttering piece of paper were sudden and extraordinary, then perhaps he might be able to get medical treatment and temporary disability benefits.

However, aside from applicants’ attorneys’ fantasies, there’s no basis to conclude that 3208.3 is somehow made inoperative by 4660.1.  So make sure there’s another bullet point on your checklist, because, even if a doctor or a medical evaluator finds Ivan permanent and stationary and assigns any level of permanent disability, unless the adjuster on his case thinks that the injury was “catastrophic,” he’s probably going to see a denial notice issued.

What do you think, dear readers?  Should Ivan let the matter go, or just get over his paper cut and get back to work?

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Ivan [and] the Terrible [Paper Cut], or is this Psyche Injury “Catastrophic”? [Part 2 of 3]

November 5th, 2014 No comments

Welcome back, folks!  As you may recall from the last post, my beloved cousin Ivan suffered a horribly debilitating injury when a fluttering piece of paper gave him a paper cut, causing a near-paralyzing fear of all paper products, and thereby precluding him from resuming his brilliant career at the paper factory.  Ivan had come to me for some “family discount” legal advice about whether the resulting psyche injury was compensable.

By way of background, dear readers, Senate Bill 863, signed into law by Governor Jerry Brown on September 18, 2012, took effect immediately, except for those sections which set a different activation date.  The newly minted Labor Code section 4660.1 took effect for all injuries sustained on or after January 1, 2013, and subsection (c) provided that there would be no increase in impairment for such psyche injuries unless they were the result of (A) a violent act; or (B) a catastrophic injury.

Labor Code section 4660.1 provides some examples of what might constitute a “catastrophic” event, but doesn’t provide very much by way of a specific test.  So, how are we, poor humble workers’ compensation G[r]eeks supposed to interpret these decrees from up high on Mount Olympus Sacramento?  (If you’ve never been to Sacramento, there’s not much there by way of mountains in the city itself, but I’m hoping you’ll go with me for the analogy).

Well, let’s start with the basics – the code section itself:

Labor Code section 4660.1(c)(B) holds: “[a] catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.”  Does it have to be as bad as all that?  Well, probably.  After all, doesn’t the list provided by the legislature give us some indication of the significance of the injury necessary to provide a compensable psychiatric injury?

“Catastrophic” is defined by Webster’s Dictionary as “a momentous tragic event ranging from extreme misfortune to utter overthrow or ruin.”  Nor did the term “catastrophic” come into creation with SB-863.

The Workers’ Compensation Appeals Board has used “catastrophic” to describe injuries rendering an applicant a quadriplegic (Brock v. KS Industries, LP (ADJ8407884)), brain injury resulting in a several-month stay in the hospital, with residual left side weakness, decreased memory, fatigue, and seizures (Mulford v. El Toro RV, Inc. (ADJ7763946)), and lack of use of an applicant’s arms and leg and the need of round-the-clock care (Barragan v. American Bridge/Fluor Enterprises (ADJ7714923)).  So, a paper cut might not make the cut (see what I did there?)…

Now, when I explained all this to my dear cousin Ivan, he seemed, oddly enough, to be encouraged.  To him, the case of the vicious paper cut was actually clear-cut (see what I did there again?): it was catastrophic in that he could no longer return to work at the paper factory, and is now so scared of paper that he shivers every time I jot down a note on my legal pad, and jumps every time my printer spits out a fax.

So, naturally, as a matter of cousinly concern, I asked him just how long of a career in the paper industry was struck down by this sad event.

“When all this happened, I had just got done with my 3-month probation period.  Just think of it, such an excellent career cut short in its prime!”

Poor, poor, Ivan.  Come back on Friday for the exciting conclusion of Ivan [and] the Terrible [Paper Cut]…

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Ivan [and] the Terrible [Paper Cut], or is this Psyche Injury “Catastrophic”? [Part 1 of 3]

November 3rd, 2014 2 comments

Your humble blogger is a dedicated defense attorney – although, once in a while, an injured worker seeking representation might darken my doorstep or make my phone ring, these stray cases are usually referred to an applicant’s attorney here or there, and the cases are never taken.  That being said, when my cousin Ivan Ivanivich Grinberg (no, not that Ivan), called to tell me about his recent injury at the copy paper factory, your humble blogger was bound by duty to hear him out, at the very least.

Ivan, was carrying a ream of freshly printed 100% recycled paper to be mailed to a particularly environmentally-minded client of his, when he slipped on a small puddle of water someone had careless left right outside the doorway into the cafeteria/lunch room.  My dear cousin slipped, falling flat on his back (growing up, we lovingly referred to him as “comically clumsy Ivan”).  But, that wasn’t the worst part – during his tumble, he ripped the paper encasing the ream he was carrying to ship to his client, and the entire set of 500 pages went flying.

Everything was fine, except one piece of paper that maliciously fluttered back and forth on its descent, heading right towards Ivan’s face!  He was paralyzed with fear for the 15 seconds it took the seemingly harmless paper to fall, but he knew that this brand of recycled paper was extra thin, and thus it was razor sharp.

In the last of the 15 seconds, during which time his calloused coworkers managed to walk by without any regard for his welfare, he managed to put his hands up to shield his eyes, and suffered a nasty paper cut as a result.

Now, I know what you’re wondering, dear readers, and I was wondering the same thing, so I asked: “Ivan, are you still hurt?”  “Of course I’m hurt! I’m totally and permanently disabled!”  Now, it’s possible that Ivan would read this blog from time to time, so I asked him if he knew what those terms meant – after all, he walked in just fine and seemed to be in no pain.  “My back is fine, and some Neosporin cleared up the paper cut, but now I can’t suffer to look at paper or my anxiety attack comes on.  I can’t sleep, I can’t eat… it’s such a horrible psychiatric injury that I have.  I can’t even go back to work…”

My dear readers, particularly those with larger extended families, understand that one cannot chose one’s blood relations, let alone shrug them off in their hour of need without causing considerable disruptions for all family events from Thanksgiving dinners to weddings for many years to come.  The Bar and Bat Mitzvahs alone would become unbearably awkward!

So I proceeded… “Well, it sounds like you think you’ve got a psyche injury, but unless you were the victim of workplace violence or a catastrophic event, California law doesn’t allow for those anymore.”

Ivan seemed relieved as he asked, “Well, isn’t this injury catastrophic?”

As any good lawyer should always do, I answered in a confident and reassuring manner: “Maybe.”

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SB897 Passes Assembly and Senate; Definition of “Catastrophic” More Fleshed Out Now?

August 29th, 2016 No comments

Happy Monday, dear readers!

Your humble blogger, on a few occasions, has raised the question: what the heck is a catastrophic injury?  After all, we really don’t know what sort of injury would prompt a compensable consequence psyche injury to trigger liability for permanent disability (or possibly temporary disability), right?

Well, enter Senate Bill 897 – and this one is a real beauty!

SB897 passed the senate and the assembly recently, and would basically extend the wage continuation for injured public safety employees (firefighters, police officers, sheriff’s deputies, etc.) from one year to two years, if the employee sustained a “catastrophic injury at the hands of another.”  Now, whatever the merits of replacing two years of temporary disability with two years of wage continuation at the expense of tax payers, this would give us a working definition of the term “catastrophic.”

Labor Code section 4660.1(c)(2)(B) already provides with some parameters for a catastrophic injury: “including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.”

SB897 defines a “catastrophic injury at the hands of another” as “severe burns, severe bodily injuries resulting from the collapse of a building, or severe bodily injuries resulting from a shooting, stabbing, or battery.”  Well, 4660.1 already provides that being a victim of a violent act or direct exposure to a significant violent act makes the compensable consequence psyche injury eligible for PD and TD, so, in that sense, there’s already overlap with the “shooting, stabbing, or battery” and the same applies for “severe burns.”

But the last component, “severe bodily injuries resulting from the collapse of a building” gives us an idea of how serious the injury needs to be to qualify as catastrophic.  It’s not the effect on the injured worker’s life.  It’s not the effect on the injured worker’s earning capacity.  It’s something akin to being in a building collapse!

Your humble blogger has been doing this workers’ comp game for a while now, and I can tell you that simply being exposed to the workers’ compensation system – as an injured worker, employer, attorney, or judge – should qualify a person for having sustained an injurious exposure of a severe and catastrophic nature.  But we practitioners must brush it off, soldier on, and soothe our wounds with sugared pastries and grapes refined into their superior form.

But an injury that results in an injured worker having to go through the workers’ comp system, being kept in limbo while becoming an unwitting expert in the art of Kafka, does not qualify as “catastrophic.”

Burned to a crisp? Catastrophic.

Shot, stabbed, or beaten up? Catastrophic.

Involved in a building collapse or plane crash or train derailment? Probably catastrophic.

You can’t work anymore so you lost your house because you can’t make payments on it and it’s hard to get hired somewhere else because of a mixture of a shifting economy and the residuals of your injury? Probably not catastrophic.

What do you think, dear readers… is this too much of a stretch?  Or can we say that the legislature has given us an idea of what to expect in a “catastrophic” injury?

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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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Catastrophic Remains Undefined?

May 18th, 2016 No comments

Happy Wednesday, dear readers!

As you will recall, SB-863 saw an amendment to the psyche claim business – pursuant to section 4660.1, there is to be no increase in permanent disability due to a compensable consequence psyche claim unless the injured worker was either the victim of violence, exposed to significant violence, or if the applicant sustained a catastrophic injury.

In classic theatrical style, the legislature left a lot of space for imagination, speculation, and (my favorite) litigation! What-oh-what did they mean by catastrophic injury?

Well, the panel cases to date have not been particularly helpful.  Everyone seems to be settling or, at least, not appealing the “catastrophic injury” question.

Recently, the WCAB reversed a WCJ’s rating based on a compensable psyche claim specifically because the issue of whether the underlying injury was violent or catastrophic was not addressed.

In Bevington v. County of Mariposa, the WCJ awarded applicant additional permanent disability based on a psyche rating, and defendant appealed arguing that a compensable consequence can only be awarded in accordance with LC 4660.1, as above.

In this particular case, the mechanism of injury was squatting, resulting in injury to the applicant’s knee.

The WCAB instructed the WCJ to develop the record and issue a ruling on whether or not the injury was catastrophic.  Unfortunately, the WCAB offered as much guidance on this point as the legislature did – how is one to determine whether or not an injury is catastrophic?  The mechanism? The effects on the body? The effects on the injured worker’s life and status and future?

For all of us sitting on the sidelines, this is a case to watch and a question to be answered.  For the parties in the trenches, this is likely a case to settle.  And the world will continue to speculate as to what catastrophic means.

If you’ve got any panel decisions that define the term – please send them to your humble blogger!

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Are Unsigned but Approved and Paid C&Rs Enforceable?

April 10th, 2013 No comments

Your humble blogger was recently at the board getting a take-nothing order following a catastrophic injury which resulted in total permanent disability (or was it just a walkthrough? So hard to remember…)  In any case, using his super-human ability to overhear conversations from five feet away, he picked up on the following case, and it’s an odd one at that.

So applicant (allegedly) sustains an injury, and then goes through the whole song and dance with the defense, which then works out a compromise and release agreement.  Everyone is on board and everyone is happy, and the agreement is put before a worker’s compensation Judge, who approves it.  Defendant sends out a check and applicant cashes it.  End of story, right?  Well, not so much.

The one missing detail in all of this was applicant’s signature.

That’s right – the defense and the Judge both overlooked the fact that applicant never signed the compromise and release.

So, four years later, applicant is calling his attorney wondering why he isn’t getting more money or medical treatment or unicorns and rainbows.  Oh, and by the way, defendant can’t get its money back because the money is gone — applicant had spent it and now wants more!


Now, dear readers, before you ask at which Board this occurred or which Judge approved the compromise and release, I remind you that your humble blogger does not name names (unless it’s to shame fraudsters).

But, realistically speaking, what is to be done in this situation?

The injured worker did not sign the Compromise and Release, but he did sign the check and spent the money.  On the other hand, the defense messed up – it submitted an unsigned Compromise and Release agreement.

We’ve seen a somewhat similar case, where a stolen and cashed check left the defendant paying double on an award,  but what’s to be done in cases like these?

Your humble blogger cornered one of the attorneys afterwards and demanded he spill as to the resolution of this case.  After trying to escape several times, he finally gave in and explained that the parties agreed to settle the claim by having the defense cough in another $1,500.  Hopefully, they will check to make sure the applicant signs the documents (and not just the check) this time before paying out.

I don’t know how this case would turn out on appeal (because that’s where it would be headed).  What do you think, dear readers?

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COA: Writ of Review Denied on Another Forceful Blow = Violence Case

December 4th, 2017 No comments

Happy Monday, dear readers!

Your humble blogger brings you a rather unfortunate writ denied case this morning, that of Greenbrae Management/SCIF v. WCAB/Torres.

This is yet another in those long line of cases where the applicant prevailed on the theory that a “forceful blow” was sufficient to satisfy the “violent act” requirement of Labor Code section 4660.1.

In this case, applicant sustained an admitted injury in 2014 when he fell 20 feet from a tree he was trimming.  The question was, of course, whether applicant should be entitled to increased permanent disability based on the psychiatric injury resulting as a compensable consequence from the fall.

The WCJ ruled that a fall from a tree was not a “violent act” and thus, as there does not appear to be proof that the injury was “catastrophic”, the additional psyche-based PD was barred.  The WCAB reversed and the Court of Appeal has now denied review.

Your humble blogger previously articulated the argument that if a “forceful blow” was sufficient to satisfy the definition of violent act as contemplated by the labor code, then every forceful blow would be an “extraordinary” employment event, as previously defined by the Court of Appeal, so the 6 month employment rule would never work to bar a fall or being hit forcefully.

Here’s hoping that we get some contrary and binding guidance soon.  The WCAB’s reasoning that this doctrine is consistent with legislative intent to limit compensable consequence psyche injuries is weak medicine for defendants, who now see everything short of a cumulative trauma being claimed as either a “violent act” because of its forceful mechanism or “catastrophic” in its effect on the injured worker.

In the meantime, your humble blogger respectfully submits that we should continue litigating these cases.  A forceful blow is not a violent act – at last not according to any binding authority.  If the Court of Appeal had to issue a published opinion concluding that a wet sidewalk is not “extraordinary” on a rainy day, perhaps it will also have to issue a publish opinion clarifying that a violent act, within the meaning of the Labor Code, requires a third-party with intent to do harm (or something of a quasi-criminal nature).

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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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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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