From: Jake Jacobsmeyer [firstname.lastname@example.org]
Labor Code § 3208.3(d) "Sudden & Extraordinary" Threshold Lessened
The Sixth Appellate District had issued a significant decision interpreting Labor Code § 3208.3(d) and the meaning of "sudden and extraordinary employment condition" as an exception to the six-month employment rule for psychiatric injuries. In its decision the court reversed a WCAB determination that an orthopedic injury caused by lumber falling on the leg of an employee was not the kind of "sudden and extraordinary employment condition" anticipated by the legislature in passage of Labor Code § 3208.3.
The applicant in this case, Aaron Matea, sustained an admitted industrial injury to his left leg while working as a management trainee at Home Depot. A rack of lumber fell off the wall and onto his left leg causing significant injury resulting in Sympathetic Reflex Dystrophy (more commonly known as Complex Regional Pain Disorder). As a result of the rather substantial disability in the left leg, applicant developed psychiatric illness in the form of depression. At trial defendants argued that applicant's employment did not meet the six months required of the Labor Code § 3208.3(d) and that therefore any claim for psychiatric injury was barred. Applicant argued that the described injury was sufficient to meet the "sudden and extraordinary event of employment" as anticipated by that Section and that the psychiatric claim should be held compensable.
The trial judge focused on the sudden (unexpected) and extraordinary nature of the event. He pointed out that it would certainly be unanticipated for lumber to fall off the racks, particularly since there were frequently customers in the defendant's store. He therefore assumed that such events were sudden and unexpected and that it met the criteria of being extraordinary. The judge awarded 100 percent permanent total disability for the combined orthopedic and psychiatric injury, awarding applicant temporary disability for life.
The WCAB however reversed, holding that the sudden and extraordinary employment conditions described in subdivision (b) contemplated much more significant types of events. Citing the language in Wal-Mart Stores, Inc. v. WCAB [Wal-Mart] 112
".that the sudden and extraordinary language is limited to occurrences such as gas main explosions or workplace violence - the type of events that would naturally expected to cause psychic disturbances even in a diligent and honest employee."
The Board asserted that applicant misinterpreted the Wal-Mart court's language. It was not the significance of the injury that was to be considered but the sudden and extraordinary nature of the event.
The applicant appealed the Board's determination initially by means of a Petition For Reconsideration (where the WCAB reverses a trial judge and issues a different decision a Petition For Reconsideration is an alternate remedy to filing a Petition For Writ Of Review). The Appeals Board denied the applicant's petition and this appeal followed.
The Court of Appeals focused very strongly on the requirement to interpret the Labor Code liberally with the intent to extend benefits mandated in Labor Code § 3202. The court also reviewed very carefully the language in Wal-Mart and then appears to have effectively rejected much of the language for a much looser interpretation of how one considers an event to be "sudden and extraordinary."
Citing definitions from the Webster Dictionary, the court defined "sudden" as "happening without previous notice or very brief notice: coming or occurring unexpectedly: not foreseen or prepared for." The definition of extraordinary included "going beyond what is usual, regular, common or customary" and "having little or no precedence and usually totally unexpected." The Court agreed that gas main explosions and workplace violence, as noted in the Wal-Mart decision, were certainly uncommon and usually totally unexpected events. While such events would be considered sudden and extraordinary, the court also indicated there would be other types of sudden and extraordinary occurrences contemplated by the Section that were less spectacular.
The court believed Matea carried his burden of showing, by a preponderance of the evidence, that the compensable psychiatric injury was a result of an event that was sufficiently sudden and extraordinary to meet the criteria of the statute. The court noted that there was rather sparse testimony about how sudden or extraordinary the event was but accepted the holding of the WCJ that "Matea was injured when a wall shelf holding up a large amount of lumber gave way without warning, which resulted in the fall of lumber upon Matea's leg." The court noted that there was no evidence about how often lumber falls from racks onto the aisles at The Home Depot or that such events were regular or routine and **** the same assumption as the WCJ did that such events would be uncommon, unusually and totally unexpected. The court then found that this information in the absence of any other documentation presented by the defendant allowed applicant to meet their burden.
The court then goes on to make a rather startling observation:
"We do not believe that a finding of a compensable injury under Section 3208.3(b) here, on the limited record and factual findings in this case, will lead to increased claims for psychiatric injuries by employees who have been employed for less than six months."
The court suggests that it would be a simple matter for an employer to come to the W.C.A.B. and provide information on how common or expected injuries might be at it workplace in order to defeat the claims of sudden and extraordinary events by injured employees. One can only imagine how excited employers are going to be to be to present testimony to the W.C.A.B. that injuries to its employees are expected or routine in order to defeat the claim of psychiatric injury of short term employees.
How the court could arrive at that conclusion is certainly open to question and I doubt seriously that either the applicant or the defense bar would agree with this conclusion. Regardless of whether one agrees with the court's conclusion that the events described by applicant would meet the test of sudden or extraordinary it is certainly a much wider door to walk through than the decision in Wal-Mart. The Court in Wal-Mart suggested very limited circumstances which would allow application of the sudden and extraordinary criteria to be met. This decision, having opened the door to a type of injury which while not common, is somewhat more routine to occur at work is very likely just the first step at what will be an ongoing challenge to water down the impact of this statute. Why the Court would think this does not encourage additional challenges to less and less traumatic and extraordinary events to see how low they threshold will be is difficult to understand.
Certainly most injured workers will probably feel that any injury which occurs to them is "sudden and extraordinary". An injury which involves a slip and fall at work is certainly going to be sudden. They will now be arguing over whether it is extraordinary. Lifting injuries are fairly routine in a warehouse but not as common in the office. Does this mean a lifting injury for a secretary is "sudden and extraordinary" because it is less frequent? All of these kinds of issues can certainly be open for discussion before the WCAB based upon the language in this particular decision. As noted by the court:
".Each case must be considered on its facts in order to determine whether the alleged psychiatric injury occurred as the result of sudden and extraordinary events that would naturally be expected to cause psychic disturbances even in a diligent and honest employee."
A copy of this case can be read at: Matea v WCAB.
Richard M. Jacobsmeyer*