WCDefenseCA

Happy Monday, dear readers!

It’s beginning to look a lot like Christmas – Mariah Carey’s “All I want for Christmas is You” is blasting from every store and radio station, Amazon boxes are piling up on porches, and e-mail auto-replies are outnumbering actual messages.  What a wonderful season!

Now, while the above is the norm now adays, the workers’ compensation system has a strong opinion on what is normal and what is… extraordinary.  That’s right dear readers!  This is a post about the sudden and extraordinary exception to the 6-month employment rule of Labor Code section 3208.3(d).

The basic rule is that there is a bar to psychiatric claims for employees with a tenure of under 6 months, but not if the psychiatric injury is the result of a “sudden and extraordinary employment condition.”  The case law is fascinating in this field because we get an interesting peek at to what is considered normal and what is considered extraordinary.  For example, a wet sidewalk is not an extraordinary condition (it does rain, after all). 

The case law has also established that it is applicant’s burden to prove that the employment condition was extraordinary, and that it is the employment condition that must be extraordinary, not the catastrophic results of the injury.

So now consider the case of Emery v. Hertz Corporation, a recent panel decision.  The WCJ determined, after trial, that applicant’s psychiatric injury was caused by a sudden an extraordinary condition, defeating the 6-month employment bar.  The mechanism?  An irate customer yelled at applicant over the phone, threatened to sue, and then also threatened to come to her worksite and teach her a lesson about customer service.  Applicant also claimed the caller threatened to “shoot” her or “hurt” her. 

Generally speaking, workplace violence is an “extraordinary” event, with the exception of some professions that deal with violence regularly, but what about threats of violence?

The trial Judge found that a credible threat of workplace violence qualified as “extraordinary,” relying on the standard set out in Matea v. WCAB  — “the types of events that would naturally be expected to cause psychiatric disturbances even in a diligent and honest employee.”  If you got a call from an angry customer threatening to come to your workplace and shoot or hurt you, would that be likely to cause a psychiatric injury?

The WCAB affirmed the trial judge’s determination that 3208.3(d) does not bar the psyche claim. 

So, the takeaways from this claim?  A remote (telephone, email, etc.) threat of workplace violence that an employee subjectively finds credible, in a profession where workplace violence is not expected will likely be considered a “sudden and extraordinary” employment condition.

Ho, ho, ho, dear readers!

Ok dear readers, it’s Monday, and I’ve got some semi-good news for you!

You may recall a while back this blog diligently wrote about the Guzman case.  No, no, dear readers, not THAT Guzman – your AMEs and QMEs are still free to go fishing through the guides to make sure the injured worker gets enough money from the case.  The other Guzman, the one in which the WCAB held that a soil compactor landing on applicant was considered both sudden and extraordinary such as to defeat the 6-month employment rule of Labor Code section 3208.3(d).

Well, SCIF was not inclined to let matters sit, so it took the WCAB up to the Court of Appeal.

Just last Tuesday, the COA issued its (unfortunately) unpublished decision reversing the WCAB.  The COA took note that the incident happened when applicant as using the compactor on uneven ground.

Previously, at trial and on recon, the reasoning relied on applicant’s testimony that he had never heard of a compactor falling on anyone and that, in his 12 years of experience, he had never lost control of a compactor (prior to this claim).

On Appeal, SCIF advanced the theory that for an even to be “extraordinary” it must be “uncommon, unusual, and totally unexpected.”  As such, the “risks of tilting, falling, or losing balance while operating the heavy machine on a 45-degree slope were all reasonably foreseeable risks.”  SCIF also argued that the burden of proving that the event was sudden and extraordinary falls on the applicant, not on the defendant.

In reversing the WCAB, the Court cited three published opinions: Matea, Garcia, and Dreher.  Relying on this authority the COA noted that (1) it is the applicant and not the defendant that bears the burden of proof in establishing an event as sudden and extraordinary; and (2) “Guzman did not provide any evidence establishing that it is ‘uncommon, unusual, and totally unexpected’ for a rock to be in soil, for a compactor to rise when striking a rock, or for an operator to become unbalanced and fall when the compactor rises on a 45-degree hillside.”

But, after holding that there was insufficient evidence to support a finding that the event was “extraordinary” the Court of Appeal went further and held that the event was not even sudden:  if the circumstances in question are working on a slope rather than on even ground, applicant had been working on a slope for some 30 minutes before the accident.

So, great news, right?  Well, not so much.  First off the case is not published so we can’t exactly rely on it as compelling authority, although the reasoning can be copy-pasted into any trial brief and shamefully asserted as the attorney’s own words.  We’re lawyers, not saints, and we’re not above plagiarism!

Also, think about the litigation budget SCIF incurred to get this far.  Not only did SCIF have to shoulder the burden of a petition for reconsideration, but also a petition for writ of review.  The delay and cost involved might make any private-sector defendant hesitate.

This result should encourage us to continue litigating and appealing these cases because victory is possible, and this result will hopefully be a decent taste of reality to applicant attorneys.  But, that being said, if anyone has the Court of Appeal on speed-dial, perhaps we could encourage the Court to publish this case?

Happy Wednesday dear readers!

Your humble blogger hopes you had a wonderful Valentines’ Day.  I used to be a real valentines’ day Grinch, but then I invested heavily in the flower cartels, the greeting card mob, and the chocolate teamsters, and now I’m all for it!

My favorite highlight from yesterday?  The Walter Sobcheck valentines rhymes (many thanks to Mr. KC). If you’re a fan of the Big Lebowski, take a look at #SobcheckValentines for a good chuckle.  For a bad chuckle, however, please proceed with this post.

Today’s post is about a recent panel decision, Guzman v. Carmel Valley Construction, SCIF.  The WCAB did not add much in denying defendant’s petition for reconsideration, but, fortunately for us all, your humble blogger has acquired the report and recommendation which lays out a lot of the facts and law.

The issue at hand was a crazy one – I mean it: applicant was alleging a psyche injury and defendant had raised the 6-month employment rule of Labor Code section 3208.3(d).  Although it appears uncontested that applicant was employed for a period shorter than six months, applicant alleged the mechanism of injury was sudden and extraordinary: while operating a soil compactor applicant hit a rock causing the soil compactor to fly up in the air and to land on applicant.

Applicant’s testimony was to the effect that in his 12 years of construction laborer work, he had used a soil compactor once per week, and he had never sustained an injury in those twelve years related to the soil compactor.  In fact, he subjectively never anticipated any risk of injury with a soil compactor.  The WCJ found that applicant’s injury was sustained as part of a sudden and extraordinary employment condition.

Because defendant offered no evidence of similar evince happening, let alone being commonplace, the WCJ relied on the uncontroverted testimony of applicant that he had never heard of such a thing happening in his 12 years in the industry.

This seems like a really good opportunity for the employer – the actual, insured, employer to assist.  The employer likely has several very seasoned managers and veterans in the industry who could advise on this point and probably reference prior cases involving OSHA or the workers’ compensation appeals board, even if out of California, to provide examples that these things do happen.

On the other hand, perhaps there really aren’t a lot of incidents out there.  Perhaps the safety manual for the soil compactor doesn’t cover this possibility.

Then, maybe, this really is an extraordinary event…

Happy Wednesday, dear readers!

As my beloved followers, subscribers, and even the occasional anonymous lurker who is too shy to drop me a line might recall, this blog previously reported on the case of Dreher v. WCAB, wherein the WCAB held that a wet sidewalk constituted an “extraordinary” condition for the purposes of defeating Labor Code section 3208.3(d)’s requirements for psyche claims following less than six months of employment.

In that case, a split WCAB panel held that because applicant was surprised by how wet the sidewalk was, it constituted an “extraordinary” condition, and allowed him to recover on his psyche claim.  The “extraordinary” nature of the claim was further bolstered by extraordinarily catastrophic injuries resulting from the event.

Well, the Court of Appeal has weighed in, and in a published decision, reversed.  The COA expressly rejected the notion that analysis of an event as extraordinary (or not extraordinary) does not turn on “the nature of the injuries resulting from the incident.”  Continuing, the opinion reads “although Dreher’s injury was more serious than might be expected, it did not constitute, nor was it caused by, a sudden and extraordinary employment event… Dreher’s slip and fall was the kind of incident that could reasonably be expected to occur.”

With respect to burden of proof, the Court of Appeal held that “[t]o the extent the WCAB’s decision can be read to place the burden of proof on the employer to demonstrate that the accident was the result of a ‘routine or ordinary employment condition,’ it was incorrect.”

So what do we take away from this?  The Court of Appeal, in a published and thus citeable decision, held that the burden of proof on the extraordinary nature of the mechanism of injury falls squarely upon the shoulders of the injured worker.

Furthermore, it appears that the extent of the injuries resulting from the mechanism are entirely irrelevant to the analysis: effects from a stubborn papercut to total and permanent paralysis do not affect the compensability of a recent hire’s psyche claim.

All in all, dear readers, not a bad bit of news for the defense community.

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…

Welcome back, dear readers!  It’s finally 2015 – the long awaited date of everyone who ever watched the famous movie, Back to the Future, Part II.  In that wonderfully entertaining film from 1989, the story’s hero, Mr. Marty McFly, travels to 2015, where we encounter a sneak-peak of what fashion would eventually be like.  In case you’re wondering, this is us casual:

and this is us in business attire:

Well, 2015 is looking good already!

Anywho, your humble blogger thought we’d start this year off with a straightforward and simple post.  In the recent writ denied case of Bracken v. Team Commercial Construction.  Applicant had sustained an injury all the way back in 1996 after a bit more than two months on the job.  He then was off work for about nine months, before returning to modified duty for a day and then going off work again.  Well, he was finally laid off in mid-June of 1997, with, effectively, a little less than two years on the books.

Applicant then claimed a psyche injury, but, as any defendant would in such a situation, defendant raised the 6-month employment rule of 3208.3(d), arguing that applicant was not employed for six months, because he actually worked less than six months, despite being “on the books” for almost two years.

Labor Code section 3208.3(d) specifically provides that a psyche claim requires that “the employee has been employed by that employer for at least six months.” Does being on the books mean being employed for the purposes of 3208.3?

Well, Wal-Mart Stores v. WCAB, a 2003 Court of Appeal case, held that “employment … mean[s] the performance of actual service for the employer.”  In other words, simply being on the books is not enough.  Accordingly, time spent on temporary disability is likewise not part of the six months.

Now, here’s a thought (or, more accurately, a stretch).  If six months of “performance of actual service for the employer” is the requirement, then what about seasonal work?  Weekend employment only?  Shouldn’t six months be converted into days, and those days of “actual service” be calculated?  An employee working two days a week would then have to wait longer before filing a psyche claim than one working five days.  Again, dear readers, just another crackpot thought.

Welcome to 2015!

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?

Your humble blogger was at his post yesterday, diligently fighting off claims and liens, when he suddenly received an alert of extraordinary nature.  The Court of Appeal, in an opinion posted only yesterday afternoon, has rendered its decision in the case of State Compensation Insurance Fund v. Workers’ Compensation Appeals Board, granting the relief sought by the defense.

In short, falling from a tree or ladder, while sudden for everyone and extraordinary for some professions, is not an extraordinary event for fruit pickers (avocados are fruit, right?)

Applicant Rigoberto Garcia had been working for his employer picking avocados from 35-foot-high avocado trees, using 24-foot ladders for roughly two months, when he suddenly fell from a ladder, sustaining various injuries, including an injury to the head. All aspects of his claim were admitted… except for the psyche claim.  The defendant raised the Labor Code section 3208.3(d) defense to psyche injuries claimed by employees with a less-than 6-month tenure.  This defense has been explored a time or two on this blog as well.

Applicant offered his own testimony at trial on the issue of the defense, claiming that he had never seen any other workers fall from a ladder with this employer, and was not warned at any time that this risk was common.  Defendant offered no evidence.

The workers’ compensation Judge found the injury was sudden and extraordinary, and the defendant filed for reconsideration.  The question that went before the WCAB was whether falling from a 24-foot ladder was a common risk to 35-foot avocado tree pickers, much like burning one’s hand while working as a drycleaner.

A split panel denied reconsideration, with the majority taking issue with defendant’s failure to present any evidence at trial as to the common occurrence of such falls.  In all fairness, the defense failed to carry its burden of proving the existence of gravity – the lawyers no doubt cursed themselves for failing to invest in apple orchards.

But, as all things that go up must come down (and there is nothing extraordinary about that), so, too, with applicant’s luck in the courts.  Defendant petitioned the Court of Appeal for a writ of review, arguing, again, that applicant failed to carry his burden in proving that the mechanism of injury was extraordinary.

The Court of Appeal, having watched the biography of Isaac Newton just the night before, granted defendant’s petition and reversed the WCAB.  The reasoning was, primarily, that common sense dictates that the injury-causing-event experienced by applicant was the exact type of injury one would expect would happen in applicant’s line of work.  Had applicant been attacked by a bear, the “extraordinary” element would have been much easier to prove.

So, the defense is now back to bearing the burden of proving common sense – what kind of injury can we expect from the following job duties…

This is an interesting one, but it takes some clarity of thought to keep the party names straight.  Given that today is Friday, your ever-accommodating blogger simply replaced the names with party 1, 2, 3, etc.

Applicant is employed by Party 1, and sustains injuries to his back with three specific dates of injury and one cumulative trauma.  Applicant later leaves the employ of Party 1 and goes to work for Party 2, for whom he is still employed roughly two months later when he sustains another injury in a vehicle accident.

The Agreed Medical Evaluator on the case opines that 65% of applicant’s impairment was caused by the injury sustained while working for Party 2, and the remaining 35% spread out among the injuries sustained while working for Party 1.  With me so far?

Party 1 – 4 orthopedic injuries – 35% impairment causation

Party 2 – 1 orthopedic injury – 65% impairment causation

Applicant then amends his claim to include a psyche injury based on the orthopedic injuries.

The psyche AME concurs with the orthopedic AME in terms of causation.  So Party 1 and Party 2 raise their respective defenses.

Party 1 claims that the injuries sustained while applicant was in its employ are not the “predominant cause” of applicant’s psyche injury, as required by Labor Code section 3208.3(b)(1), and Party 2 claimed that applicant had not been employed for six months at the time of his injury, as required by Labor Code section 3208.3(d).

The Workers’ Compensation Judge knocked out the defense of Party 2, presumably because of the “sudden and extraordinary employment condition,” to wit, a car accident, that is not reasonably to be expected from landscaping work.  But, the WCJ did acknowledge and approve of Party 1’s “predominant cause” defense.

The Workers’ Compensation Appeals Board affirmed and the Court of Appeal denied review.  (Monty Lewis v. Workers’ Compensation Appeals Board (2011)).

Just a thought – let’s say applicant worked for four employers, one after another, and sustained an injury while working for each one.  If the evaluating physician apportioned 25% causation to each employer from the inevitable psyche injury, would the “predominant cause” defense bar the claim?

If the answer is yes, then no matter how legitimate the claim or debilitating the injury, the fact that multiple employers contributed to the impairment would help prevent liability for any of them.  A worthwhile defense to explore in similar circumstances, and a reason for multiple employers to pool their resources and spread causation out thinner than “predominant cause” can tolerate.

I recently started using a dry-cleaner near my office for my shirts.  Before, I used to wash and iron them at home, but the service is ridiculously affordable and convenient.  Little did I know, before reading about the story of Hilda Bonilla, that the work can be very dangerous.

Hilda, a dry cleaner, was injured when an ironing press came down on her hand at work.  The burn mark quickly appeared, followed by a claim for injury to her skin, psyche, nervous system, internal organs, and sleep.

The skinny: for a psyche claim for an employee working the job less than six months, the injury must be caused by an event that is both sudden AND extraordinary – the type of injury that regularly happens at this job, no matter how suddenly, does not qualify.

The Workers’ Compensation Judge found all injuries, the psyche as well, to be compensable.  Defendant petition for reconsideration, arguing that Labor Code § 3208.3(d) barred Hilda’s claim.

§ 3208.3 governs psyche claims, and specifically bars all claims of psychiatric injury for those employees with less than six months (total, not necessarily continuous) time on the job, unless the injury is caused by a sudden and extraordinary event.

Does the ironing press you were using a second ago coming down on your hand count as “a sudden and extraordinary event”?  If it does, is there any specific injury (rather than cumulative trauma) that isn’t a sudden and extraordinary event?

The record reflected ample witness testimony that burns were common, and that employees had to be careful lest they suffer burns from the equipment.

The WCAB granted reconsideration, reasoning that the event may have been horrible and happened suddenly, but the phenomenon of being burned while working at a dry cleaner was not extraordinary, as required by the statute.  By contrast, a gas explosion or workplace violence would qualify as such.

Hilda petitioned for a writ of review.  The result?  WRIT DENIED!  (Bonilla v. Workers’ Compensation Appeals Board (Cameo Cleaners))