ADJ12386691 — California WCAB decision

ADJ12386691 · July 22, 2021

The Workers' Compensation Appeals Board denied the defendant's Petition for Reconsideration, upholding the WCJ's finding that the applicant's psychiatric injury was caused by a sudden and extraordinary employment condition and thus not barred by Labor Code section 3208.3(d).

Issues decided

Medical opinions weighed

Authorities named

District office

Sacramento

What the panel ordered

Defendant filed a Petition for Reconsideration of the Findings of Fact issued by the WCJ on May 5, 2021, challenging the finding that the injury was caused by a sudden and extraordinary employment condition under Labor Code section 3208.3(d). The WCAB panel reviewed the petition, applicant's answer, and the WCJ's report and denied the petition.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEApplicant prevailedpsychiatric

The injury occurred when the applicant, a nurse case manager with an office job, fell off a loading dock which was not part of her regular work area, making the injury sudden and extraordinary as it was uncommon, unusual, and unexpected for her job. The WCJ's finding was upheld by the WCAB panel, denying the defendant's petition.

From the decision · page 1We have considered the allegations of defendant's Petition for Reconsideration, applicant's answer and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, for the reasons stated in the WCJ's report, which we adopt and incorporate, and discussed below, we will deny reconsideration.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant was employed as a nurse case manager with an office job and was injured falling off a loading dock which was not part of her job duties.

Favours Applicant prevailed

This fact established that the injury was not a routine employment event and thus was sudden and extraordinary under Labor Code section 3208.3(d).

From the decision · page 2In this matter, applicant was employed as a nurse case manager. This position was an office job working at a desk with a computer and phone. Applicant was injured when she fell off a loading dock outside the employer's building while trying to walk to the cafeteria. She testified that being on the loading dock would not be part of any job she would be doing for defendant and that she did not receive any safety training or protocols about walking around the loading dock.

Applicant testified she did not receive any safety training or protocols about walking around the loading dock.

Favours Applicant prevailed

Lack of safety training and protocols indicated the loading dock was not part of the expected work environment, supporting the injury being sudden and extraordinary.

From the decision · page 2In this matter, applicant was employed as a nurse case manager. This position was an office job working at a desk with a computer and phone. Applicant was injured when she fell off a loading dock outside the employer's building while trying to walk to the cafeteria. She testified that being on the loading dock would not be part of any job she would be doing for defendant and that she did not receive any safety training or protocols about walking around the loading dock.

The warning chain intended to keep passersby from wandering into the loading dock was not properly in place.

Favours Applicant prevailed

This fact showed a hazardous condition contributing to the injury, supporting compensability.

From the decision · page 83 It is noteworthy that the undisputed evidence from multiple witnesses was that the warning chain intended to keep passersby from wandering into the loading dock was not properly in place. Even if fault were a consideration, one wonders where the fault would have been found.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 3208.3(d)

Labor Code section 3208.3(d) bars compensability for psychiatric injury if employed less than six months unless caused by a sudden and extraordinary employment condition.

The injury was found to be caused by a sudden and extraordinary employment condition, thus not barred by this statute.

From the decision · page 1The dissent concludes that this injury is not sudden and extraordinary under Labor Code section 3208.3(d) because applicant's injury as a result of walking off a loading dock was not uncommon, unusual and unexpected. As discussed by the WCJ in his Report, there are cases where an injury from falling was found not to be sudden and extraordinary. (See Bayanjargal v. Workers' Comp. Appeals Bd. (2006) 71 Cal.Comp.Cases 1829 (writ den.) [roofer slipping and falling off a roof was not extraordinary because it was an ordinary risk of the job]; State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Garcia) (2012) 204 Cal.App.4th 766 [77 Cal.Comp.Cases 307] [an avocado picker falling from a ladder was not extraordinary]; Travelers Casualty & Surety Co. v. Workers' Comp. Appeals Bd. (Dreher) (2016) 246 Cal.App.4th 1101 [81 Cal.Comp.Cases 402] [live-in maintenance supervisor's slip-and-fall on rain-slicked concrete while walking between the complex's buildings was not extraordinary].) In those cases, the employees were engaged in the type of work where an injury from a fall was deemed an ordinary risk of their occupation, e.g., a roofer may fall off the roof or an avocado picker on a ladder may fall off the ladder. These risks were inherent to the employees' work and therefore were not uncommon, unusual or unexpected employment conditions.

Labor Code sections 3600(a) and 3202.5

Applicant bears the burden to prove the injury was caused by a sudden and extraordinary employment condition by a preponderance of the evidence.

Applicant met the burden by showing the injury was uncommon, unusual, and unexpected for her job.

From the decision · page 4Applicant bears the burden of proving the injury was caused by a sudden and extraordinary employment condition by a preponderance of the evidence. (Lab. Code, § 3600(a), 3202.5.) A "sudden and extraordinary" employment condition means something that is not regular and routine, and is uncommon, unusual and unexpected. (See Matea v. Workers' Comp. Appeals Bd. (2006) 144 Cal.App.4th 1435, 1449 [71 Cal.Comp.Cases 1522].) The Court of Appeal in Matea noted that the dictionary "defines `sudden' as `happening without previous notice or with very brief notice: coming or occurring unexpectedly: not foreseen or prepared for.' " (Id.

Matea v. Workers' Comp. Appeals Bd. (2006) 144 Cal.App.4th 1435

Sudden and extraordinary means uncommon, unusual, unexpected, and not regular or routine.

The injury was not a regular and routine event for a nurse case manager, thus qualifying as sudden and extraordinary.

From the decision · page 7Gas main explosions and workplace violence are certainly uncommon and usually totally unexpected events; thus, they may be sudden and extraordinary employment conditions. However, we believe that there may also be other "sudden and extraordinary" occurrences or events within the contemplation of section 3208.3, subdivision (d) that would naturally be expected to cause psychic disturbances even in diligent and honest employees. Therefore, if an employee carries his or her burden of showing by a preponderance of the evidence that the event or occurrence that caused the alleged psychiatric injury was something other than a regular and routine employment event or condition, that is, that the event was uncommon, unusual, and occurred unexpectedly, the injury may be compensable even if the employee was employed for less than six months. (id, at 1448-1449.)

ADJ12386691 · July 22, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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