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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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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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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 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.

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