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Keyword: ‘forceful blow’

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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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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Go Time! Go Case Says TD and PD from Self-Procured

January 24th, 2018 1 comment

Happy Wednesday, dear readers… or, at least, it WOULD be if I had a better case to bring to your attention.

The matter is that of Sutter Solano Medical Center v. WCAB, a recent writ denied case.  The facts are fairly straight forward – applicant had an admitted injury to the neck.  Applicant’s PTP submitted an RFA for neck surgery, which Utilization Review denied.  Applicant then self-procured the medical treatment and demanded increased PD and TD resulting from the surgery.

If you are curious about the results of this issue, imagine your humble blogger’s normally grimacing face going into extra-grimace mode.  The WCJ and the WCAB both held that UR might shield defendant from liability for the medical procedure costs, but the resulting PD and TD claims are not defeated by Utilization Review.

In the immortal words of Pedro Chespirito, “no me gusta.”

The WCJ cited a 2009 panel decision (Barela v. Leprino Foods (ADJ3226482)) for the rule that UR does not bar PD or TD, only liability for medical treatment.

The panel added to the reasoning by noting that there are generally two methods of obtaining treatment.  That treatment provided by the employer, subject to UR and IMR, is held to the standard of being reasonably necessary to cure or relieve from the effects of the injury.  However, the panel noted that this standard is not applied to self-procured medical treatment.  Which, of course, your humble blogger reads to means that an injured worker can seek out and pay for unreasonable methods of treatment – and the unreasonable aspect of the treatment can both be as to the method and the risks involved.

The panel decision concludes by inviting the legislature to get involved if the legislative intent is to allow UR denials of medical treatment authorization to extend to resulting TD and PD.  As much as your humble blogger would like such a legislative amendment, in my limited experience, seeking legislation is poking the bear – the “reforms” that come from legislation end up create more litigation (which is great for defense attorneys like me!) but also creating more exceptions, loopholes, limitations, and harm for employers.

After all, the reform of SB-863 essentially enshrined Almaraz/Guzman as part of the law rather than repealing it.  And, even though Ogilvie is essentially dead for post 1/1/13 dates of injury with the elimination of diminished future earnings capacity, we now have a body of law holding that a “forceful blow”, like a slip-and-fall, is an act of violence.

Anywho, there is sufficient panel authority out there to support this conclusion, but, conceptually, your humble blogger has a hard time following the logic.  UR has made a determination that a particular method of treatment is not reasonably necessary.  If the applicant proceeds with this treatment isn’t it, legally speaking, unreasonable?

Additionally, why isn’t this being treated as the functional equivalent of a non-industrial injury?  Had applicant sustained another injury subsequent to being found P&S, even a non-industrial injury, wouldn’t we expect the evaluators to apportion accordingly?  If Applicant had X permanent disability before the surgery (or the pretend non-industrial injury) and now has Y permanent disability, shouldn’t her level of PD still be X?

One of the points of reasoning in reaching this conclusion was that the PTP and the AME both agreed that applicant’s surgery was necessary.  Isn’t that the point of UR – to determine if the treatment is thus?  AMEs are even prohibited from addressing matters reserved for UR and IMR, as per Labor Code section 4062.2(f).

In short, what is to prevent an employee from taking unnecessary medical treatment risks, and forcing the defendant to bear the costs of failed or even technically successful procedures?

In the instant case, applicant underwent a serious surgical procedure at her own expense, and the medical professionals involved, whatever the weight or relevance of their opinions as to the proceedings, reasonably opined that the procedure was necessary.

Now let your imagination wander away from this scenario and look at some… “other” forms of treatment.  In Ukraine (or, the Ukraine for my American friends) people are treated with radon baths for orthopedic injuries.  Would the resulting lung cancer and related benefits be the responsibility of a defendant?

I bet a little bit of google digging would find all sorts of… unusual… methods of treatment, including administering snake-bites, prolonged “faith healing” including refusal of any medicine in the interim, or exorcism.  Are defendants supposed to be on the hook for all the fallout from these things?  Believe me, dear readers, I have had cases where the PTP or QME decides that the radon baths are “reasonable” even though there was never an RFA, let alone UR and IMR.

So, what do you think, dear readers – is it worth it to open Pandora’s Box with new legislation on this?  Or is this a rarity and applicants will rarely self-procure?

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Happy (Belated) 2018!

January 8th, 2018 No comments

Hello my beloved readers! And a very, very happy 2018 to you!

Your humble blogger is back, at least for now,

So what’s new in 2018?  Well, here are a few things to look out for.

Minimum wage in California has gone up (of course!) and is now $10.50 ($11.00 for employers with more than 25 employees).  Now, bear in mind, in some places, like your humble blogger’s own, beloved San Mateo County, the minimum wage is as high as $13.50 per hour.  If you have a minimum wage employee currently on temporary disability, there’s a good chance you’ll see a demand for an increased rate.

Speaking of the TTD rate, as the State Average Weekly Wage saw a 3.6% increase, going from $1,164.51 to $1,206.92, anyone paying life pensions may want to calculate an increase based on COLA.

There’s also an increase in the TTD minimum, from $175.88 to $182.29.

What are you hoping to see in 2018? (let’s be realistic folks – from the litigation and legislation cookeries).

My wish list for 2018 includes:

  1. Some binding authority that vocational rehabilitation experts are irrelevant for post 1/1/13 injuries, as diminished future earning capacity is not part of the permanent disability equation;
  2. A reversal of the recent legal trend recognizing any “forceful blow” or any slip-and-fall as a violent act triggering liability for psychiatric compensable consequence disability (permanent OR temporary); and
  3. The birth of a new trend in which the medical unit issues panels with three doctors that set timely (I know this is a long-shot, but we can dream, can’t we?)

But, post important of all, I think we should all find 2018 to be full of success, good health, and happiness.

Let’s get to work!

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

April 7th, 2017 No comments

Happy Friday, dear readers!

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

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

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

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

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

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

The undersigned respectfully disagrees.

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

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

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

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

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

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

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

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