What the panel ordered
The WCAB rescinded the February 11, 2021 F&O, substituted a new F&O finding that applicant's claim of injury to his psyche is not barred by Labor Code section 3208.3(d), deferred all other issues, and returned the matter to the trial level for further proceedings.
Applicant seeks reconsideration of the WCJ's February 11, 2021 Findings of Fact and Opinion on Decision, which found that Labor Code section 3208.3(d) exempts defendant from liability for applicant's psychiatric injury because applicant was employed less than six months and injury was not caused by a sudden and extraordinary employment condition.
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.
The WCAB found that the applicant's psychiatric injury was caused by a sudden and extraordinary employment condition, thus not barred by the six-month employment requirement of Labor Code section 3208.3(d).
From the decision · page 8Here, the parties stipulated that applicant sustained injuries AOE/COE to his left forearm, left elbow, left shoulder, left wrist, chest, neck, ribs, abdomen left side, facial, lung left side, hypertension, vision, and headache. The parties also stipulated that applicant was not employed by defendant for six months when he was injured. Additionally, applicant claims injury AOE/COE to other body parts, including to his psyche. Therefore, we must consider whether applicant sustained an injury to his psyche as a result of a "sudden and extraordinary employment condition," within the meaning of section 3208.3(d).
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was employed less than six months at the time of injury.
Favours Defendant prevailed
This fact triggers the application of Labor Code section 3208.3(d) which generally bars psychiatric injury claims unless caused by a sudden and extraordinary employment condition.
From the decision · page 2Prior to trial, the parties stipulated that applicant had not completed six months of employment for defendant prior to his injury on January 10, 2020. (Pre-trial Conference Statement, p. 2.)
Applicant's injury was caused by a sudden and extraordinary employment condition involving a train collision while stopped on railroad tracks in traffic.
Favours Applicant prevailed
This fact exempts the claim from the six-month employment requirement under Labor Code section 3208.3(d), favoring compensability of the psychiatric injury.
From the decision · page 9Based on the evidence presented, applicant's injury was the result of a "sudden" employment condition, as described in section 3208.3(d). Applicant, a truck driver, was traveling his assigned route when he was caught in bumper-to-bumper traffic near railroad tracks. He suddenly saw "cars zooming off the tracks...." Crossing guards came down between the cab and the trailer of his truck so applicant was unable to move, however, he believed his truck was clear of the tracks. He took off his seatbelt to get out of the truck, but, based on how quickly the train was approaching, applicant did not have time to leave the safe haven of his truck. He testified that his truck was shaking because the train was coming at him "real fast." Applicant testified that he saw the bright lights of the train, his truck was shaking really hard, and the next thing he remembers is the train colliding with his truck. Based on these facts, the collision occurred suddenly, unexpectedly, and without previous notice. (Matea, supra, at p. 1448.)
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Designated as secondary treating psychiatrist for psychiatric evaluation and treatment authorization.
From the decision · page 2The claim is admitted. Defendant has failed to respond to the RFA dated 09/09/ for psychiatric evaluation and treatment. AA contacted defense counsel on 10/29/, 10/30/, 11/09/ and NCM on 11/17/ and 11/18/ regarding the status of the authorization. Applicant has also designated Richard Dorsey, MD as his secondary treating psychiatrist. To date, AA has not been served UR decision or auth. Applicant seeks WCJ order authorizing treatment with Dr. Dorsey.
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) six-month employment requirement exemption for sudden and extraordinary employment conditions causing psychiatric injury.
The Board applied the statute to find the applicant's psychiatric injury was caused by a sudden and extraordinary employment condition, exempting the claim from the six-month employment requirement.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's detailed testimony about the sudden train collision and the unexpected nature of the event.
From the decision · page 3Applicant testified at trial, in pertinent part, as follows1:
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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