Thursday, April 5, 2018

Flying Soil Compactors and What Exactly is “Sudden and Extraordinary” Under Labor Code 3208.3?

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.