WCDefenseCA

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…