Under
Labor
Code Section 3208.3, “no compensation shall be paid for a psychiatric
injury…unless the employee has been employed by that employer for at least six
months. This subdivision shall not apply if the psychiatric injury is caused by
a sudden and extraordinary employment
condition." (Italics added).
What
exactly is “Sudden and Extraordinary?” Jose Guzman was
operating a soil compactor when he was injured. The compactor hit a rock
while Guzman was working on a hillside
with a 45-degree slope. The compactor rose in the air, caused Guzman to
fall backwards, and then fell on top of him. The workers' compensation judge
determined that Guzman sustained an injury to his back and psyche,
and that the psychiatric injury was caused by a “sudden and
extraordinary employment condition.” The workers’ compensation carrier
petitioned for reconsideration, which was denied. The carrier
filed a petition for writ of review. The Sixth District Court of Appeal agreed with
the carrier. Flying soil compactors are
not “sudden and extraordinary.” The Court
reasoned that since Guzman had not introduced any evidence of what happens when
soil compactors hit rocks he did not meet the burden of proof. SCIF v. WCAB (Jose Guzman), No. H044300 (Cal. Ct. App. Feb. 23, 2018) was originally de-published but on
February 23, 2018, ordered published at the request of SCIF.
There
are several decisions where “sudden and extraordinary” is examined. The latest
issue of the California Workers Compensation Reporter had a nice write up on
the issue. Here are some recent
examples.
In Matea v. WCAB (2006) 144 Cal.App.4th
1435, the court determined that a rack of lumber falling
on an employee of The Home Depot was “a sudden and extraordinary
employment condition.” The court
believed that “all the lumber in a rack falling into an aisle and
onto an employee's leg causing injury to the employee was . . . such an
uncommon, unusual, and totally unexpected event or occurrence.” In SCIF v. WCAB (Garcia) (2012) 204
Cal.App.4th 766
an avocado picker fell from the top of a 24-foot ladder while picking
avocados from a tree. The Court determined that the employee's fall
was sudden, but not extraordinary. In Travelers Casualty & Surety Co. v. WCAB (Dreher)
(2016) 246 Cal.App.4th 1101 it was determined that falling on
slippery concrete while walking at the job site was not extraordinary.
Here
are a few more cases where the Court made a finding of “sudden and
extraordinary.” Applicant was driving a truck
and trailer and lost control on a wet highway, the trailer jack-knifed and Applicant
was thrown to the passenger side of the truck and then out the passenger side
door, the Applicant saw the trailer coming toward him…circumstances here were
sufficient to be interpreted as "extraordinary" (California Insurance Guarantee Association v. WCAB (Tejera) (2007)
72. Cal. Comp. Cases 482).
Employee suspended half way up an 80-foot tree that he was cutting and the
trunk of the tree fell, hitting him in the chest and causing serious physical
and psychiatric injury (Campos v. WCAB (2010) 75 Cal. Comp. Cases 565) (unpublished). A
wall unexpectedly fell and the Court found that it was both uncommon and
unusual for a wall to fall on a worker. (Production Framing Systems v. WCAB (Dove)
77 Cal. Comp. Cases 756).
What
is “sudden and extraordinary” is still a matter of debate among applicant and
defense counsel and a matter of opinion among the appellate courts. These types of cases seem to be extremely
fact sensitive. That said, there does
seem to be a loose consensus that the event causing injury must really be
extraordinary, unless it’s a flying soil compactor, apparently.