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

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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