May 2, 2016
Court Reverses Award of Psychiatric Injury
The court closed what could have turned into a significant expansion of the concept of “sudden and extraordinary employment condition.”
The First Appellate District Court of Appeal has closed what could have turned into a significant expansion of the concept of “sudden and extraordinary employment condition” contained in Labor Code § 3208.3(d) with a reversal of a W.C.A.B. decision awarding benefits for a psychiatric injury in Travelers Casualty and Surety Co v W.C.A.B. (Dreher).
The applicant was employed as a live-in maintenance supervisor for an apartment complex and had been employed for only 74 days at the time of his injury on Oct. 19, 2009. He was walking in the rain from one building to another in the complex, when he slipped and fell on a slippery concrete sidewalk sustaining multiple significant injuries, including fractured pelvis, injuries to his neck, right shoulder, right leg and knee. He also suffered gait derangement, a sleep disorder and headaches. As a result of those injuries, he developed psychiatric complaints as a consequence of his multiple surgeries and continuing issues. A medical report supported a relationship between his injury and a psychiatric disorder.
However, at trial, the WCJ denied his claim for his psychiatric condition on the basis that his employment failed to meet the minimum six-month requirement for employment under Labor Code § 3208.3(d) and further determined the exception for a “sudden and extraordinary employment condition” had not been met. On reconsideration, a split panel reversed the WCJ holding and determined that the applicant’s fall on slippery concrete met the sudden and extraordinary requirement of the statute. The Court of Appeal granted Travelers’ petition for writ of review.
After dealing with some procedural issues, the court got to the heart of the matter. Reviewing the multiple cases outlining the criterion for applying the sudden and extraordinary employment condition, the court refused to find that a slip and fall on a sidewalk met the criterion. Citing the landmark decision in Wal-mart v W.C.A.B., the court noted that the mere fact the injury was accidental did not meet the statutory exception:
“If the argument were made that an accidental injury constitutes a ‘sudden and extraordinary employment condition,’ we would reject it. For one thing, such an interpretation would mean that psychological injuries resulting from accidents would not be subject to the six-month rule, but such injuries arising from cumulative physical injury would be governed by that limitation; this distinction would make no sense, and we are reluctant to attribute irrational intentions to the Legislature.”
The court also rejected the argument advanced by applicant that the unexpectedly catastrophic nature of the injury served as a basis for an extraordinary employment condition.
“Here, the statute provides that the six-month limitation does not apply if the psychiatric condition is caused by a ;sudden and extraordinary employment condition.’ (§ 3208.3, subd. (d).) The statute does not include the nature of the injuries resulting from an incident as a basis for the exception. Had the Legislature intended to include the nature of the injury as a factor in the definition of a sudden and extraordinary employment condition, it knew how to do so….
“Accordingly, although Dreher’s injury was more serious than might be expected, it did not constitute, nor was it caused by, a sudden and extraordinary employment event within the meaning of section 3208.3, subdivision (d). The evidence showed that Dreher routinely walked between buildings on concrete walkways at the work site and that he slipped and fell while walking on rain-slicked pavement.”
The court further noted the burden was on the employee to prove the sudden and extraordinary employment condition, and the applicant’s testimony that he was “surprised” by the slick surface did not demonstrate that his injury was caused by an uncommon, unusual or totally unexpected event.
The matter was remanded to the W.C.A.B. with instructions to deny the claim for psychiatric injury.
Comments and Conclusions:
This is a relatively short appellate decision but with a firm result. The court was clearly of a mind that the W.C.A.B.’s interpretation of what constituted a sudden and extraordinary employment condition did not meet the common sense test for legislative interpretation. Commissioner Caplane, in her dissent in the W.C.A.B. decision, had noted that the majority’s opinion on what constituted a sudden and extraordinary event could be applied to virtually every claim because injuries were almost always unexpected when they occurred. While the court did not make a specific comment, the idea that an employee slipping on a wet sidewalk was in any way shape or form “extraordinary” simply did not pass the smell test.
The court’s holding that the nature of the injuries sustained did not figure into the equation is also of considerable help in defining application of the rule under Labor Code § 3208.3(d).
While the court’s interpretation of Labor Code § 3208.3(d) is helpful for that section, I do not think this decision is going to have any impact on our understanding of the language in Labor Code § 4660.1(c)(2)(B), with the exception created for “catastrophic injuries.” That section clearly intends there be consideration of the nature of an injury in the determination of whether additional psychiatric sequelae is to be included in the calculation of PD.