WCDefenseCA

Happy Friday dear readers! 

You know what this humblest of blogs needs? More posts on catastrophic injuries, that’s what!

So, of course, I bring you the recent panel decision in the matter of Hernandez v. Valley Transit Authority, where applicant sought reconsideration to get an award of additional PD for a psychiatric component of an orthopedic injury.

So, before we get into the facts of the case, a bit of background!

Way back when (specifically, in 2012, effective January 1, 2013), SB-863 was passed into law, once again reforming our beloved workers’ compensation system.  This was back before COVID and vaccines and ZOOM depositions and remote trials.  Those were wild times!

Well, part of SB863 was the addition of Labor Code section 4660.1, which barred permanent disability for compensable consequence psyche injuries in the absence of (1) being a victim of a violent act; (2) being directly exposed to a significant violent act; or (3) “a catastrophic injury, including but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.” 

Your humble blogger remembers when a compensable consequence psyche was plead in almost every application, but then suddenly stopped when SB-83 went into effect.  For some reason the applicants’ bar almost entirely stopped pursuing those totally legit and not in any way exaggerated claims once there was no PD available.  Nowadays, those add-ons are a lot less frequent.

Your humble blogger has posted a few times about past usage of the term “catastrophic”, so now let’s turn to the Hernandez decision.   Applicant sustained an injury to the back and hip after slipping on wet tracks and hitting his hip on a railroad tie.  This occurred as applicant was trying to get out of the way of a train coming down the tracks upon which he was working. 

What do you get when you combine a train and “CATastrophic”? This…

AOE/COE was not in dispute, but the question pending was whether the injury qualified under Labor Code section 4660.1’s exceptions to barring psychiatric permanent disability.

The Trial Judge found that this injury was NOT a violet act, nor was it catastrophic.  The WCJ rejected the claim that the mechanism of injury was a “violent act”, rejecting the string of cases that interpreted “violent act” to include a “forceful blow”, but as to catastrophic injury, the WCJ relied on the analysis in the en banc WCAB decision in Wilson v. State of California; Cal Fire which in pertinent part measured “catastrophic” depending on the intensity and seriousness of treatment, ultimate outcome upon achieving P&S, and severity of impact on applicant’s activities of daily living. 

The WCJ determined that applicant’s serious treatment pertained mostly two his two back surgeries, including a fusion, and the prospect surgery in the future to remove hardware from his spine.  The activities of daily living limited ambulation but were not severely impacted as to walking short distances, sitting for an hour at a time, and self-care/grooming.  Finally, the permanent disability rating placed applicant’s back condition in category IV of Table 15-3 of the AMA Guides (DRE Lumbar Spine) and not in the highest category. 

Accordingly, the WCJ found that the injury did not rise to the level of “catastrophic” and any additional permanent disability stemming from the psychiatric conditions applicant sustained are barred.

The WCAB, on applicant’s petition for reconsideration, agreed with the trial judge and denied the petition.

Query for you, dear readers – what if this was NOT a compensable consequence claim?  What if applicant had alleged a psychiatric injury directly from having to avoid the train and falling?  Certainly, an argument could be made that the experience of falling while trying to avoid a coming train could have caused its own terror and resulting psyche injury, no?

Well, SB-863 does not bar “pure” psyche claims from generating additional PD, but the record would require a med-legal opinion to that effect, and a psyche med-legal can reasonably conclude, in most cases, that the predominant cause of a psychiatric condition is not the specific mechanism of injury, but the resulting orthopedic medical treatment and residual effects from the injury.

Have a good weekend, dear readers!

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?

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]…

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.”

Guess what, dear readers? I’m baaaaack!  Thank you all for the kind e-mails and LinkedIn messages inquiring about my health and whether I would be returning.  Rest assured, dear readers, the reports of my death are greatly exaggerated.

Now, you might wonder what I’ve been doing all this time.  Well, I’ll gladly tell you.  As you will recall, towards the end of 2012, the California legislature passed SB-863 which, among other things limited increases in permanent disability as a result of compensable consequence psyche cases.  One exception to this limitation is, of course, catastrophic injuries which, much to the frustration of your humble blogger, remained undefined.

Well, I decided to set out on a quest to find the answer.  I swam across raging rivers, climbed up mossy mountains, and fought my way through swamps riddled with R.O.U.S.s, just to meet with a legendary wise man.  Observing the protocol of the area, I sat in his hut, cross-legged on the floor, until he acknowledged me and let me ask him one question.  So that’s what I did.

“Oh wise man” I asked, “how do we know when an injury is catastrophic in California’s workers’ compensation system.”

He looked at me for a moment and then sighed.  Then he told me something I will never forget: “Sir, this is my house.  You can’ just come in here and sit on my floor.  Also, what is workers’ compensation? Is that like employment law?”

Needless to say, the trip was not as productive as I hoped. 

To add insult to injury, when I returned from my travels, I learned that the WCAB had already addressed this issue in the en banc decision of Wilson v. Sate of Ca Cal Fire.

In Wilson, applicant was a firefighter who inhaled dangerous fumes and was hospitalized for two weeks.  Afterwards his condition deteriorated, and he started having seizures and needed more hospitalizations and treatment.  The claim itself was accepted by defendant denied the compensable consequence psyche claim.

The matter proceeded to trial and the WCJ sustained the denial of psyche, advising that this was not a catastrophic injury.  Facing the same problem visited upon judges with some frequency, including the U.S. Supreme Court, the WCJ noted that he would know catastrophic injury when he saw it, and this wasn’t it.

On appeal, the WCAB entertained several theories on defining catastrophic injury.  First, the WCAB noted that there was no violent act because this was fume inhalation, and not a “forceful blow.”  The WCAB also rejected the theory that this was pure psyche, as the medical-legal reporting opined the psychiatric injury was from the repeated hospitalization rather than the original mechanism.

Then the WCAB moved to determine whether this was catastrophic.  The defense proposed permanent total disability as the standard, but the WCAB rejected this theory because what would be the point in an increase in PD due to psyche if applicant was already at 100%?

The WCAB also rejected applicant’s theory that a catastrophic injury was measured by loss of some or all earning capacity.

Ultimately, the WCAB advanced a fact-based inquiry with various factors to consider:

1. Intensity/seriousness of treatment received for the injury;
2. Ultimate outcome when employee’s physical injury is P&S;
3. Severity of physical injury; impact on activities of daily living;
4. Whether physical injury is closely analogous to one of the injuries specified by the Labor Code (amputation, paralysis, etc.); and
5. If physical injury is an incurable and progressive disease.

In applying the factor to the Wilson case, the WCAB noted that the purpose in the reform was to weed out the automatic add-on psyche claims that were essentially frivolous.  We all know those applicant firms that always alleged psyche, sleep loss, and gastro-intestinal issues on EVERY SINGLE APPLICATION.

In this case, the WCAB did not consider it such a case, and applied the factors above to find a catastrophic injury, thus entitling him to a PD increase for psyche.

So now we have some guidance from the WCAB on identifying catastrophic injury, and we didn’t even have to go on a quest for it!

It’s nice to be back, dear readers.  I’ve missed you very much!

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.”

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?

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.

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!

Happy Friday, my dear readers!

Before we all check out for the weekend, I think it only fair to report to you that, at long last, we have new guidance on the meaning of the word “violent” when it comes to post-1/1/13 compensable consequence injuries for psyche add-ons, thanks to a recent Court of Appeals decision,

As practitioners from the pre-SB-863 days will remember, every single orthopedic injury came with sexual dysfunction, sleep loss, and psyche compensable consequence claims in an effort to frivolously drive up exposure and litigation costs.  SB-863 sought to put an end to that by eliminating permanent disability for such claims, limiting permanent disability in such cases only to psyche claims, and then again, only when the injury involves (1) being a victim of a violent act; (2) being exposed to a significant violent act; or (3) a catastrophic injury.  (See LC 4660.1)

For years, violence was defined as one would expect – a criminal act intentionally committed by another person.  However, as early as 2016 the WCAB expanded the scope of a “violent act” to include a forceful blow, such as falling on a hard floor.  Well, almost every slip-and-fall case became a “violent act” in that sense.

Well, just yesterday afternoon the Court of Appeal for the 4th District issued its published decision in Christrock Entertainment v. WCAB (Smith).  In the Smith case, applicant was a fight promoter who had recently started living in the Bel-Aire neighborhood of Los Angeles and attended a show as part of his job duties.  Inexplicably, he became emotionally distraught at some of the performance.  The next morning he noticed he had a sore back and significant bruising on the palm of his right hand, which he attributed to the poor ergonomic set-up of the audience seating.  He filed a claim for orthopedic injury to his low back (the bruising on his hand resolved shortly thereafter) but also filed a psyche claim as a compensable consequence, alleging that he felt that the impact of observing the show was so violent towards him that he was entitled to additional compensation for his psychiatric trauma.

At a psychiatric PQME evaluation, the evaluator noted that applicant was making wild claims that he had been recruited for an organization who is tasked with keeping the existence of extra-terrestrial visitors to the planet Earth a secret.  He also made bizarre claims that the Earth was going to be attacked on Independence Day but that he was prepared to help defend it.

The WCJ and WCAB both rejected the claims for additional PD based on psyche, relying on LC 4660.1 and noting that an act of violence, though watered down by including any “forceful blow,” did require some sort of strike or impact: even a slap.  But on applicant’s petition for a writ of review, the Court of Appeal reversed!

Citing recent theories from such academic institutions as UC Berkeley, the Court of Appeals noted that there was a growing consensus that speech, and in some cases the lack of speech, can be construed as violence.  Accordingly, if subjective feelings are sufficiently hurt, the “violent act” requirement of 4660.1 can be satisfied.  All that is required is credible testimony on the part of the applicant.  The Court cited a list of other cases that recently came to the same conclusion. 

Late last night, upon hearing about the Court’s decision, applicant made the following statement: “When this case started I felt I was being treated like one of the bad boys, but now I feel like a real prince!”

The employer, Christrock, has already stated it has no intention of seeking an appeal, which is bad news for defendant everywhere who would like to see this wrong righted. 

You can get more context here, dear readers!  Till Monday…