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Table of Contents

Introduction and overview of the course

Overview of the case examples

Learning objectives

Brief Review of Psychiatric Injuries under SB863

Brief Review of psych claims with less than six months of employment

Report Writing Tips and Comments

Case reports

Introduction and Overview of the Course

This course begins with a review of (1) A psych claim with less than six months of employment and exclusions (Labor Code 3208.3 and (2) Derivative psychiatric injuries under SB863, including the Violent Act and Catastrophic Injury exceptions. The course then reviews evaluation and report-writing “tips” followed by two case examples related to exception to the 6-month rule and violent exception to SB863.

Overview of the Case Examples

Overview of Case #1

This a complicated case of a traumatic limb amputation with alleged psychological sequelae post-SB863 and with the injured worker having been employed less than six months (actually employed just 2-hours at the time of the injury). The case example addresses all of the usual issues in dispute in addition to whether the injury was “sudden and extraordinary” (allowing for a possible psych claim with less than 6 months employment). The case example also addresses consideration of the catastrophic injury exception for derivative psychiatric injury under SB863. As in introduction, the following are Applicant and Defense Advocacy Letters. This will help underscore the various issues that needed to be addressed.

The information provided in the Applicant’s Advocacy Letter is as follows: “Mr. Chino suffered traumatic injury on 6/10/17 while employed as a sign holder for Kentucky Fried Chicken. He was standing on a street corner with a sign when there was an automobile accident and Mr. Chino sustained severe injury to his left which had to be amputated below the knee. Mr. Chino sought Dr. Ted Goldstein as AME in Orthopedics and has been deemed permanent and stationary. Your opinion is sought as to the nature and extent of his psyche injury as a result of the amputation.”

The Defense Advocacy Letter provided background information as follows: “Mr. Chino was working part-time for Kentucky Fried Chicken on June 10, 2017 as a sidewalk sign holder advertising the business. He suffered a left leg below the knee amputation when there was a two-car collision at the intersection where he was standing. The application was amended to allege lumbar spine and psyche/stress as injured body parts. The allegation of injury to the left leg (amputation) and lumbar spine is admitted; the allegation of psychiatric injury is denied. Mr. Chino has been seen by Dr. Ted Goldstein, who evaluated as the Agreed Medical Examiner in Orthopedics. He is being referred to you to address the allegation of psychiatric injury.”

As part of the medical file, there is also a letter addressed to the applicant from the claims examiner. The letter is entitled, “Notice of Denial of Claim for Workers’ Compensation Benefits.” Part of the letter discusses that the psychiatric aspect of the claim has been denied. Specifically, it states: “After careful consideration of all available information, we are accepting liability only for your claim of injury to left below the knee amputation and lumbar spine. Liability is being denied for psyche/stress because employer level investigation revealed a lack of factual evidence and substantial medical evidence that you sustained an injury on 8/25/17. In addition, based on Labor Code 3208.3(D), you were not employed for more than 6 months and therefore the Labor Code does not permit a claim for psychiatric injury. You have not met the conditions of the compensation liability or preponderance of evidence standard pursuant to LC3600, 3202.5, and 3208.3.”

Overview of Case #2

Mr. Wessler began working for Exotic Thai in May of 2007. His job duties were numerous including such things as helping in the kitchen and delivering food, using his own vehicle. On 07/08/2007 he was delivering pizzas in his 1997 Jeep Cherokee. He stated he was wearing his seatbelt. He stated he was driving on the highway when he exited the freeway and stopped at a red light. The light turned green and he proceeded to make a left turn. As he entered the intersection, a drunk driver went through the red light and hit the front passenger’s side of his vehicle at a speed of about 80 miles an hour. As a result of the accident, the engine compartment collapsed into the driver’s compartment and shattered his right femur. He ultimately underwent three surgeries to the right leg in addition to a myriad of other treatment. His orthopedic injuries were accepted but the psych was denied as follows: “State Fund has formally objected to the compensability of psychological injury as the statutory requirement of employment of 6 months has not been met”.

Medical Legal Research Related to Compensability

In the case examples, the psychiatric aspects of the claims had been denied. The denials were based on several issues including: The lack of factual evidence and substantial medical evidence for a psychiatric disorder and Labor Code 3208.3(D), which precludes a psychiatric injury claim as the injured worker has been employed less than 6 months. Another issue was that Case #1 was a post-SB863 claim and involved some elements of a derivative psychiatric injury in response to an orthopedic injury.

Compensability for a psychiatric injury if employed less than 6 months

Labor Code section 3208.3 was enacted as part of the Margolin-Greene Workers' Compensation Reform Act of 1989. See also Section by Section Summary of SB899. It is part of the Legislature's response to increased public concern about the high cost of workers' compensation coverage, limited benefits for injured workers, suspected fraud and widespread abuses in the system, and particularly the proliferation of workers' compensation cases with claims for psychiatric injuries. (Hansen v. Workers' Compensation Appeals Board. (1993) 18 Cal.App.4th 1179, 1183 [23 Cal. Rptr. 2d 30, 58 Cal. Comp Cases 602] (Hansen.) "The Legislature's expressed intent in enacting Labor Code section 3208.3 was to establish a new and higher threshold of compensability for psychiatric injury." (Id. At p. 1184, citing §3208.3, subd. (c).) As originally enacted, therefore, subdivision (b) of the statute provided, "In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were responsible for a least 10 percent of the total causation from all sources contributing to the psychiatric injury." (Stats. 1989, ch. 892, §25, p.3003.)

In l991, section 3208.3 was amended to add subdivision (d), which provided that no compensation shall be paid for psychiatric injury resulting from a "regular and routine employment event" (including lawful personnel actions) unless the employee has been employed by the employer for at least six months. "The Legislature's apparent purpose in enacting subdivision (d) of section 3208.3 was to limit questionable claims for psychiatric injuries resulting from routine stress during the first six months of employment." (Hansen, supra, 18 Cal.App.4th at p. 1184.) As the Hansen court explained, this policy decision was based on the fact that a new employee is customarily on probation for the first six months of employment, during which time problems often occur which may "result in disciplinary action, resignation, or termination and lead to claims to psychiatric injury due to stress." (Ibid.) However, subdivision (d) also stated, "Nothing in this section shall be construed to mean that there shall not be compensability for any psychiatric injury which is related to any physical injury in the workplace." (Stats. 1991. Ch. 115 §4, p. 684, eff. July 17, 1991; Italics Added).

In 1993, the Legislature again amended section 3208.3, increasing the causation requirement for work-related psychiatric injury from 10 percent to more than half. (See ante, fn. 2; Department of Corrections v. Workers' Comp. Appeals Bd. (1999) 76 Cal.App4th 810, 815-816 [90 Cal. Rptr. 2d 716, 64 Cal. Comp. Cases 1356] ["predominant as to all causes" means more than 50 percent].) At the same time, the italicized sentence quoted above was deleted from subdivision (d). (Stats. 1993, ch. 118, §1, pp. 1225-1226.)

In Clarendon National Insurance Co., et al. v. W.C.A.B. (Chill) (2003) 68 Cal.Comp.Cases 940 (Writ Denied), the Board held that the applicant's psychiatric injury was not barred by Labor Code section 3208.3(d) where the psychiatric injury did not arise until one and one-half years after the orthopedic injury and it arose out of the orthopedic injury incurred within six-months of the applicant's employment. The Court of Appeal, Second District, in upholding the Board stated, in part:

In this matter, applicant did not receive psychiatric treatment as a consequence of the underlying back injury until approximately one and a half years after the initial injury. Thus, this case does not appear to be one which was targeted by the legislature in enacting and amending Labor Code §3208.3, since it does not fit the standard definition of a "disgruntled short-term former employee" (ld. at page 253). Rather, applicant's psychiatric sequelae arise simply as the compensable consequence predominantly caused by his accepted industrial injury to his back. Furthermore, as the Court of Appeal noted in McCullough and [Hansen v. W.C.A.B. (1993) 18 Cal. App. 4th 1179, 23 Cal. Rptr. 2d 30, 58 Cal. Comp. Cases 602], a new employee is customarily on probation during the first 6 months of employment, and it is during this period when problems between the employee and the employer or supervisor often occur. McCullough, supra 67 Cal. Comp. Cases at page 248; Hansen, supra 58 Cal. Comp. Cases 605). The psychiatric injury herein is not the result of problems between applicant and his employer in the first 6 months of employment. Instead, applicant's psychiatric condition was caused by his underlying orthopedic injury. Therefore, we hold that in this narrow instance, applicant's psychiatric compensable consequence injury arose out of and in the course of his employment, and it is not barred by Labor Code §3208.3(d).

However, in Wal-Mart Stores, et al. v. W.C.A.B. (Garcia) (2003) 68 Cal.Comp.Cases 1575, 112 Cal. App.4th 1435, 5 Cal.Rptr.3d 822 (Published), the Court of Appeal, Fourth District, reversed the Appeals Board on a similar issue, and held that that the six month of employment requirement in Labor Code section 3208.3(d) applied to all claims of an industrial psychiatric injury, including those claimed to have arisen out of the effects of a physical industrial injury. This was stated in part as follows (paraphrased):

Lockheed Martin clearly points to the conclusion that the six-month requirement of subdivision (d) should also be construed to apply to all claims for injury to the psyche, including those which are claimed to arise from physical injuries. There is simply no basis on which an alternative construction may rest. The subdivision does contain an exception for psychic injuries resulting from a "sudden and extraordinary employment condition," but no other claims for such injury are excluded. (Italics Added). We therefore follow the approach and analysis of the court in Lockheed Martin and we hold that the six-month limitation expressed in subdivision (d) of section 3208.3 applies to all claims for psychiatric injury. Although it is true that a claim for psychiatric injury which rests on an objective physical injury may be somewhat less likely to be fraudulent than one based on "stress," there remains a substantial potential for the fraudulent inflation of a claim by adding alleged psychic injuries; thus, including such claims to meet the six-month standard is by no means unreasonable. (See Lockheed Martin, supra, at p. 1249.)

In this decision, the court states, “In our view, the ‘sudden and extraordinary’ language is limited to occurrences such as gas main explosions or workplace violence-the type of events that would naturally be expected to cause psychic disturbances even in a diligent and honest employee” (Footnote 9).

Another case ultimately found that the falling of lumber from a rack onto an applicant's left leg was an uncommon, unusual and totally unexpected event at work (the Court of Appeal, Sixth District in Matea v. W.C.A.B. (2006) 71 Cal.Comp.Cases 1522, 144 Cal.App.4th 1435, 51 Cal.Rptr.3d 314 (Published). The following is a summary of the case.

Eighteen-year-old Matea began working for The Home Depot in July 2001. On September 16, 2001, while working as a manager-trainee, Matea injured his left foot and ankle when all the lumber (12- foot four by fours) from a rack fell on him after the store closed. He does not know how many pieces of lumber actually fell on his leg. He suffered a contusion and swelling but no fracture and has been diagnosed with reflex sympathetic dystrophy (RSD). He worked in a restricted capacity after his leg injury for short periods of time. However, Matea's attempts to return to his prior position were unsuccessful and he last worked in December 2001. He reports constant pain in his ankle and foot. He also reports depression due to his belief that he is not going to improve and anxiety due to his fear of being hurt again. One psychiatrist determined that the predominant cause of Matea's pain disorder and depression was his September 16, 2001 industrial injury. Another psychiatrist found no industrial psychiatric injury

The WCJ filed and served his findings and award on July 6, 2005. The WCJ found in pertinent part that Matea was 100 percent permanently disabled and, although he was not employed by The Home Depot for a total of six months as required by section 3208.3, subdivision (d), his psychiatric injury was caused by "a sudden and extraordinary event. While the case is a close one, the facts here do seem to meet that definition. [Matea] was injured when a wall shelf holding up a large amount of lumber gave way without warning, which resulted in the fall of the lumber on [Matea's] leg. No testimony was presented regarding how often Home Depot has its shelves give way and dump lumber onto its aisles, but one assumes that such occurrences are quite rare, given that those aisles are open to the public." The WCJ awarded Matea permanent disability of 100 percent and future medical treatment. The Home Depot filed a petition for reconsideration.

The Board filed an opinion and order granting reconsideration and decision after reconsideration on September 23, 2005. The Board found that, pursuant to section 3208.3, subdivision (d), Matea's claim of psychiatric injury "is barred unless the psychiatric injury was caused by a 'sudden and extraordinary employment condition.' And since the 'sudden and extraordinary' provision negates the six-month employment requirement, which is already established herein, it is [Matea's] burden to show that the psychiatric injury was caused by a sudden and extraordinary employment condition. [P] Based on [Matea's] trial testimony, we conclude that [Matea] did not meet his burden. At the trial of January 21, 2005, [Matea] testified that 'he injured his foot when a rack of lumber fell on his left leg.' The Home Depot is a big-box hardware store that sells lumber to the public; the fact that [Matea], a store manager trainee, would be working in close proximity to racks of lumber is not unusual. Again, it was [Matea's] testimony that the injury of September 16, 2001 happened when 'a rack of lumber fell on his left leg.' Considering the site of employment, wherein it would have been normal for [Matea] to work in proximity to lumber racks, we conclude that a rack of lumber falling on his leg was not a 'sudden and extraordinary employment condition' within the meaning of section 3208.3, [subdivision] (d). Therefore, his claim of psychiatric injury is barred by the six-month employment requirement. Accordingly, we will reverse the WCJ's finding that [Matea] sustained an industrial psychiatric injury."

The Board rescinded the WCJ's decision and award. It found that Matea sustained a compensable injury to his left leg, but all remaining issues, including but not limited to permanent disability, were returned to the trial level for further proceedings and a new decision consistent with the Board's opinion. Matea petitioned for reconsideration.

The Board filed an opinion and order denying further reconsideration on November 3, 2005. The Board stated in part, "the Court in Wal-Mart Stores, Inc. v. Workers' Compensation Appeals Board [(Wal-Mart)] (2003) 112 Cal. App. 4th 1435[, 1441,] fn. 9[,] [5 Cal. Rptr. 3d 822] stated 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 be expected to cause psychic disturbances even in a diligent and honest employee. [P] In asserting that his injury was 'sudden and extraordinary' in this case, [Matea] misinterprets the [Wal-Mart] Court's language in Footnote 9. The injury in this case may have been a devastating injury, but it was not legally sudden and extraordinary because it was not in the nature of a gas main explosion or workplace violence or a type of event that would naturally be expected to cause psychic disturbances even in a diligent and honest employee.

However, the Court of Appeal, Sixth District in Matea v. W.C.A.B. (2006) 71 Cal.Comp.Cases 1522, 144 CaLApp.4th 1435, 51 CaLRptr.3d 314 (Published), ultimately found that, “While the record is sparse and the facts are few concerning what caused the lumber to fall, we believe that all the lumber in a rack falling into an aisle and onto an employee's leg causing injury to the employee was in this case such an uncommon, unusual, and totally unexpected event or occurrence that it "would naturally be expected to cause psychic disturbances even in a diligent and honest employee." (Wal-Mart, supra, 112 Cal. App. 4th at p. 1441, fn. 9.). The analysis is summarized as follows:

Matea contends that a shelf full of lumber giving way, causing the lumber to fall on a worker and injuring his leg, is a "sudden and extraordinary employment condition" within the meaning of section 3208.3, subdivision (d). He argues that the Board misread the dicta in Wal-Mart, supra, 112 Cal. App. 4th 1435, a case that did not need to decide what constitutes a sudden and extraordinary employment condition under section 3208.3, subdivision (d), by reading the language in Footnote 9 "as if it were written into the statute." "[Section] 3202 requires the [Board] to limit the statute to its terms, and those terms are simple. It only requires the injury to be sudden (if it were not sudden, Mr. Matea would not have been crushed) and extraordinary which means unusual." "To hold that the statute bars this type of injury improperly narrowly construes the statute, violates [section] 3202, as well as the plain meaning of the statute."

This Court agreed with the court in Wal-Mart that the sudden and extraordinary employment condition language in section 3208.3, subdivision (d), is limited to "the type of events that would naturally be expected to cause psychic disturbances even in a diligent and honest employee." (Wal-Mart, supra, 112 Cal. App. 4th at p. 1441, fn. 9.). We also agree that the sudden and extraordinary employment condition language in section 3208.3, subdivision (d), could certainly include occurrences such as gas main explosions or workplace violence. However, giving the language of the statute "its usual, ordinary import" (Dyna-Med, supra, 43 Cal. 3d at pp. 1386-1387), in light of its legislative history, and liberally construing the statute in the employee's favor (§ 3202), we believe that the Legislature intended to except from the six-month limitation psychiatric injuries that are caused by "a sudden and extraordinary employment condition," and not by a regular or routine employment event. While the amendments to section 3208.3 eliminated an explicit distinction between "a regular and routine employment event" and "a sudden and extraordinary employment condition," in subdivision (d), we believe that the Legislature's intent in doing so was not to impose an additional limitation on what constitutes a sudden and extraordinary employment condition. (Cf. City of Oakland, supra, 99 Cal. App. 4th at p. 267.) Rather, the amendments to section 3208.3 in 1993 were intended to impose an additional limitation on what constitutes a compensable psychiatric injury by accepting psychiatric injuries resulting from routine physical injuries during the first six months as well as psychiatric injuries resulting from routine personnel decisions during the first six months of an employee's employment.

Webster's Third International Dictionary (1993), at page 2284, defines "sudden" as "happening without previous notice or with very brief notice: coming or occurring unexpectedly: not foreseen or prepared for." The same dictionary defines "extraordinary" as "going beyond what is usual, regular, common, or customary;" and "having little or no precedent and usually totally unexpected." (Webster's 3d International Dict., supra, p. 807.) Gas 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.

The question before this court is whether Matea carried his burden of showing by a preponderance of the evidence" 'in the light of the entire record' " (Lamb, supra, 11 Cal. 3d at p. 281, italics omitted) that he suffered a compensable psychiatric injury as a result of an admitted leg injury during the first six months of his employment with The Home Depot. Matea testified that his leg was injured when a rack of lumber fell on his left leg. No other testimony regarding how Matea's leg was injured was introduced at the hearing before the WCJ, but various medical reports were submitted wherein Matea further described the events leading up to his injury. The WCJ found on the record before him 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 the lumber on [Matea's] leg."

The Board found, based on Matea's trial testimony, that he injured his foot when a rack of lumber fell on his left leg.' "We are bound by the Board's factual findings, as they are supported by substantial evidence. (§ 5952.) While the record is sparse and the facts are few concerning what caused the lumber to fall, we believe that all the lumber in a rack falling into an aisle and onto an employee's leg causing injury to the employee was in this case such an uncommon, unusual, and totally unexpected event or occurrence that it "would naturally be expected to cause psychic disturbances even in a diligent and honest employee." (Wal-Mart, supra, 112 Cal. App. 4th at p. 1441, fn. 9.). As the WCJ stated, no testimony was presented regarding how often lumber falls from racks into the aisles at The Home Depot, and there was no evidence presented that such occurrences are regular and routine events. We must assume, as the WCJ assumed, that they are uncommon, unusual and totally unexpected events; otherwise, The Home Depot would have presented testimony to the contrary. Therefore, in the absence of any contrary evidence, when Matea presented evidence that he was injured as a result of all the lumber from a rack falling onto him, he met his burden of proving that he was injured as a result of a sudden and extraordinary employment condition as required by section 3208.3, subdivision (d). Accordingly, the Board erred in interpreting section 3208.3, subdivision (d), to find otherwise.

We do not believe that our finding of a compensable injury under section 3208.3, subdivision (d) 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 employee still bears the burden of showing that the alleged psychiatric injury did not "derive[] from the effects of a[] ... routine physical injury" (Wal-Mart, supra, 112 Cal. App. 4th at p. 1438), and was not the result of the routine type of stress or employment event that all employees who work for the same employer may experience or expect within the first six months of their employment (Hansen, supra, 18 Cal. App. 4th at p. 1184; City of Oakland, supra, 99 Cal. App. 4th at pp. 265-267; Pacific Gas & Electric, supra, 114 Cal. App. 4th at p. 1182). Each case must be considered on its facts in order to determine whether the alleged psychiatric injury occurred as a result of sudden and extraordinary events that would naturally be expected to cause psychic disturbances even in a diligent and honest employee. (Wal-Mart, supra, 112 Cal. App. 4th at p. 1441, fn. 9.) Thus, our findings here are consistent with the express legislative intent of the original enactment of section 3208.3 in 1989, which was "passed in 'response to increased public concern about the high cost of workers' compensation coverage, limited benefits for injured workers, suspected fraud and widespread abuses in the system, and particularly the proliferation of workers' compensation cases with claims of psychiatric injuries.' " (City of Oakland, supra, 99 Cal. App. 4th at p. 265.) The Board's opinion and order after reconsideration filed on September 23, 2005, is annulled. The matter is remanded to the Board with directions to issue a new and different order in the case consistent with this opinion.

In Puga v. W.C.A.B. (2007) 72 Cal.Comp.Cases 195 (Unpublished), the Court of Appeal, Fifth District, in an unpublished decision upheld a denial of benefits to an employee employed as a tractor driver, installer and repairer of ceiling fans in a chicken house, who fell from a ladder injuring his neck, thoracic spine and psyche, and in denying benefits distinguished in Matea, supra, by stating the following (summarized):

During the second month of applicant's employment in this case, she had been using a ladder to install and repair ceiling fans in a chicken house. She carried the ladder to do the job and she would go up and down the ladder several times a day. [Citation.] Thus, applicant's use of the ladder was not extraordinary, as it was part of the very duties for which applicant had been employed. In her supplemental briefing to this court, Puga argues her fall from the ladder was uncommon, unusual, and unexpected, and that Zacky Farms did not produce any evidence that this type of injury was a common occurrence for a poultry farm laborer. She attempts to bolster her claim by presenting a general job description of a poultry farm laborer from a Department of Labor dictionary of occupational titles that does not mention the use of a ladder. Puga's own testimony refutes her claim that her regular job duties did not include regular ladder use. According to the summary of minutes prepared by the WCJ, Puga testified: For the second month, she was installing and repairing ceiling fans in the chicken house. To do this job she carried a ladder. [P] ... She would go up and down the ladder several times a day. Puga was therefore engaging in her regular and routine employment activities at the time of her injury. Even construing the workers' compensation laws liberally towards extending benefits to an injured employee, like the WCAB majority, we are unconvinced Puga's injury arose out of an "extraordinary employment condition" as a matter of law under section 3208.3, subdivision (d) ....

In another case, State Fund v WCAB and Garcia (2012), the Second District Court of Appeals reversed a W.C.A.B. award of psychiatric injury for an employee with less than 6 months employment. In State Fund v W.C.A.B. (Garcia) the applicant was an avocado picker who fell off a high ladder sustaining significant injuries to his head, neck and other body parts. Because he had only been working for 2 months, State Fund denied his claim for psychiatric injury based on Labor Code § 3208.3(d). At trial, the only issue for determination was whether the injury met the “extraordinary” criterion of the “sudden and extraordinary” language of the Labor Code. The only witness at trial was the applicant who testified was standing on top of a 24-foot ladder picking avocados from a 35-foot tree in an avocado grove. He testified that no one at Cole Ranch ever advised him of the risk of falling from a ladder and that "as far as he knew," no other Cole Ranch picker had fallen from a ladder. Upon questioning by the workers' compensation judge (WCJ), Garcia stated Cole Ranch did not hold any safety meetings or provide him with a safety harness. SCIF presented no evidence. The trial judge found the injury met the “sudden and extraordinary” criterion under the statute.

On reconsideration, the W.C.A.B. majority found the lack of information about how “extraordinary” the injury was decided the issue: "While not particularly strong evidence on extraordinariness, [Garcia's] testimony was the only evidence. It was uncontradicted and unimpeached. [Citations.] If [SCIF] had presented any documentary evidence or testimony as to the frequency of falls from ladders for avocado pickers or how the rates for insuring them reflect the 'common' risk of falls from ladders, then the decision on this issue might have been different."

The Appellate Court focused on the statutory provision that directed the burden of proof on both the “sudden and extraordinary” criterion rested with the applicant: “Consequently, when an alleged psychiatric injury occurs within the first six months of employment, as it did here, the applicant must demonstrate by a preponderance of the evidence that a sudden and extraordinary employment condition caused the injury. (Matea, supra, 144 Cal.App.4th at p. 1449.) SCIF contends that Garcia failed to meet this burden. We agree. The Court found significant difference between this case and the Matea case:

In Matea, a rack of lumber suddenly fell on a manager-trainee's left leg while he was in a store aisle at The Home Depot. (Matea, supra, 144 Cal.App.4th at pp. 1449-1450.) He claimed psychiatric injury even though he had been employed less than six months. (Ibid.) Because the record contained no evidence that such occurrences of falling lumber were regular or routine, the court “assumed that they are uncommon, unusual and totally unexpected events." (Id. at p. 1450.) In the absence of any contrary evidence, the court held that Matea had satisfied his burden of proving that his injury was the result of a sudden and extraordinary employment condition. (Ibid.)

Garcia contends the same analysis applies here, but we see two critical distinctions. First, Matea's accident occurred in a store aisle, where "'one assumes that such occurrences [of falling lumber] are quite rare, given that those aisles are open to the public.'" (Matea, supra, 144 Cal.App.4th at p. 1441.) Shoppers typically are not on the lookout for falling merchandise as they walk down store aisles. Second, the WCJ determined that Matea’s injury occurred when the wall shelf holding up the rack of lumber gave way without warning, dumping lumber into the aisle. Presumably, the lumber would have struck anyone who happened to be in the aisle at the time. (Ibid.)

Garcia's injury was far different. It did not occur in a public area or in an area shielded from the typical hazards of his occupation. To the contrary, the injury occurred in the avocado grove where Garcia and his coworkers were picking fruit from high trees while standing on tall ladders. A fall under these circumstances cannot be described as an uncommon, unusual and totally unexpected occurrence.

This case was found by the court to be much closer to three prior writ denied opinions. The Court felt two cases, also involving falls from heights, were very similar, one involving a roofer and another a tree trimmer. Similarly, a motor vehicle accident for a limousine driver was not deemed an extraordinary event sufficient to escape Labor Code § 3208.3(d). The Court then focused on who had the burden of proof to show the injury was extraordinary and concluded it was not State Fund’s burden but the applicant’s.

In CIGA v. W.C.A.B. (Tejera) (2007) 72 Cal.Comp.Cases 482 (Writ Denied), the Board upheld a judge's decision finding that a truck driver's injuries to have been caused by sudden and extraordinary conditions when his trailer jack-knifed and he was thrown to the pavement. Although acknowledging that motor vehicle accidents are not extraordinary events for truck drivers, the judge and the Board found the events of the accidents (steering wheel broke off) not to be frequent events and therefore justified an exception.

One last example as summarized on the DWC website: Remedios Lira, Applicant v. Premium Packing, PSI, administered by Sedgwick CMS, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 299 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS -- (Lexis Advance). The WCAB affirmed WCJ’s finding that applicant tractor driver’s claim for psychiatric injury resulting from being hit by train on 9/24/2011 while crossing railroad tracks was not barred by Labor Code § 3208.3(e) as post-termination claim, when WCAB, relying on analysis in cases addressing “sudden and extraordinary employment condition” exception to six-month employment requirement in Labor Code § 3208.3(d), found compensability based on “sudden and extraordinary” exception in Labor Code § 3208.3(e)(1), and reasoned that (1) under Matea v. W.C.A.B. (2006) 144 Cal. App. 4th 1435, 51 Cal. Rptr. 3d 314, 71 Cal. Comp. Cases 1522, “sudden and extraordinary” employment events are those events that are “uncommon, unusual and totally unexpected,” (2) although motor vehicle accidents are generally not extraordinary events, accidents that occur under extremely unusual circumstances, as described in California Insurance Guarantee Association v. W.C.A.B. (Tejera) (2007) 72 Cal. Comp. Cases 482 (writ denied), may be interpreted as extraordinary, (3) type of accident where train collides with tractor, such as occurred here, was not routine or ordinary but rather was uncommon and unexpected so as to fall within “sudden and extraordinary” exception as interpreted in Matea and Tejera, and (4) defendant presented no evidence that applicant’s accident was common or routine; in making its finding, WCAB rejected court’s interpretation of “extraordinary” in State Compensation Ins. Fund v. W.C.A.B. (Garcia) (2012) 204 Cal. App. 4th 766, 139 Cal. Rptr. 3d 215, 77 Cal. Comp. Cases 307, because it creates distinction based upon how hazardous employee’s occupation is even though there is no basis for such distinction in legislative history of Labor Code § 3208.3, and WCAB also rejected defendant’s suggestion that Labor Code § 3208.3 requires workplace event or condition to be unforeseeable in order to qualify for application of “sudden and extraordinary” exception. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.02[3][d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][c], [e].]

Brief Review of Psychiatric Injuries Under SB863

An overview of SB863 can be found here.  SB 863 impacted several major changes to the system of permanent disability compensation by adopting a new statute, Labor Code section 4660.1, which is applicable for all injuries occurring on or after January 1, 2013. Among these changes is a limitation on the ability of injured workers to receive permanent disability compensation for sleep disorders, sexual disorders and psychological/psychiatric disorders which develop as a “compensable consequence” of physical injuries. Labor Code 4660.1(c)(1) states:

Except as provided in paragraph (2), there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury. Nothing in this section shall limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction or psychiatric disorder, if any, that are a consequence of an industrial injury.

It is important to look at the wording to understand the impact. The first phrase that must be evaluated is:

“there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury ….”. Labor Code section 4660.1(c)(1) does not preclude an injured worker from receiving temporary disability compensation when, for instance, compensable consequence psychological/psychiatric disorders render an injured worker to be temporarily totally disabled. Further, related to the phrase, “arising out of a compensable physical injury ….”. Labor Code section 4660.1(c)(1) does not preclude “increases in impairment ratings” for sleep disorders, sexual disorders and psychological/psychiatric disorders which occur as a direct result of the industrial injury itself. What this means in the specific context of psychological/psychiatric disorder claims is that an injured worker may still receive permanent disability compensation: (1) in cases where the primary injury is to the psyche (so called “mental-mental claims”); and (2) in cases of traumatic brain injury; and (3) in cases where the psychological/psychiatric disorder directly results from an underlying industrial event which is inherently psychologically traumatic (e.g., PTSD).

The last phrase which deserves mention is: “[n]othing in this section shall limit the ability of an injured employee to obtain treatment ….”. Thus, whether or not an injured worker can receive permanent disability compensation for compensable consequence sleep disorders, sexual disorders and psychological/psychiatric disorders, that worker is still entitled to receive treatment for these conditions, provided, of course, that such treatment is deemed medically necessary. Assuming that the physical injury in a particular case is significant, one can easily understand why psychological/psychiatric treatment would be necessary to alleviate the effects of that injury.

With respect to psychological/psychiatric injuries, there are two exceptions to the prohibition contained in Section 4660.1(c)(1).  Labor Code section 4660.1(c)(2) states:  An increased impairment rating for psychiatric disorder shall not be subject to paragraph (1) if the compensable psychiatric injury resulted from either of the following: Being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3. Or, a catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.

The “Violent Act Exception”. Labor Code section 4660.1(c)(2)(A) does not define the term “violent act”. Rather, it simply references Labor Code section 3208.3, which likewise fails to define this term. Accordingly, what constitutes a “violent act” is subject to debate until such time as a precise definition is derived through the appellate litigation process.

To begin to understand the term “violent act” in its proper context, one needs to first review Labor Code section 3208.3(b) in its entirety: In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. In the case of employees whose injuries resulted from being a victim of a violent act or from direct exposure to a significant violent act, the employee shall be required to demonstrate by a preponderance of the evidence that actual events of employment were a substantial cause of the injury. For the purposes of this section, "substantial cause" means at least 35 to 40 percent of the causation from all sources combined.

As such, in cases where the injured worker was either “the victim of a violent act” or was “directly exposed to a significant violent act”, the causation threshold of compensability for any resulting psychological/psychiatric injury is different. Unlike all other claims of psyche injury which are subject to the “predominant cause” standard (>50%), where a psychological/psychiatric injury results from a “violent act” or exposure to a “significant violent act” the injured worker need only prove that the act was a “substantial cause” of their psyche injury (35% - 40%). Although Labor Code section 3208.3(b) has been around since 1991, there are very few cases which address whether a particular work-related event constituted a “violent act”. Most of these cases involved rather obvious situations such as the injured worker being threatened by armed gunmen in the course of a robbery or witnessing a drunk driver hitting a pedestrian.

There is an interesting WCAB Panel decision on what else might constitute a “violent act”. In Larsen v. Securitas Security Services, 2016 Cal. Wrk. Comp. P.D. LEXIS -- (Appeals Board noteworthy panel decision), the WCAB panel affirmed the WCJ’s findings that the applicant security guard sustained a compensable psychiatric injury that resulted in 56 percent permanent disability, after apportionment and after combination with permanent disability to the applicant’s shoulders, and that the applicant’s psychiatric permanent disability was separately compensable because it resulted from a “violent act” in accordance with Labor Code § 4660.1(c) [LC 4660.1].

The WCAB panel found that the applicant’s accepted orthopedic and alleged psychiatric injury occurred as a result of being hit by a car while walking through a parking lot on 2/21/2013. The defendant asserted that being hit by a car was not a “violent act” under Labor Code § 4660.1 because it was not an act of a criminal or quasi-criminal nature perpetrated against the applicant.

The WCAB panel concluded that, where the Legislature did not include any language in Labor Code § 3208.3(b) [LC 3208.3] limiting the definition of a “violent act” to either criminal or quasi-criminal conduct perpetrated against an applicant, for purposes of Labor Code § 3208.3(b), a “violent act” is not limited solely to criminal or quasi-criminal activity, and may include other acts that are characterized by either a strong physical force, extreme or intense force, or are vehemently or passionately threatening. The applicant in this case, who was hit by a car from behind with enough force to cause her to fall, hit her head and lose consciousness, was a victim of a “violent act” within the definition of Labor Code § 3208.3(b) for purposes of receiving additional permanent disability for her psychological injury as an exception to Labor Code § 4660.1(c).

The “Catastrophic Injury” Exception. The exception provided for in Labor Code section 4660.1 (c) (2) for psychological/psychiatric conditions which result from "catastrophic injury" is vague and will likely result in significant debate.  Similar to the case of the “violent act” exception, Section 4660.1(c)(2) does not define the term “catastrophic injury”. Instead, Section 4660.1(c)(2)(B) simply provides a non-exclusive list of examples of such injuries. Once again, what constitutes a “catastrophic injury” will be unclear until such time as the appellate courts intervene.

It should be underscored that Labor Code 4660.1 (c) (2) used the term “catastrophic injury” as opposed to “catastrophic event”, “catastrophic incident” or “catastrophic accident”.  Thus, the focus appears to be on the injury (or the outcome of a work- related injury) and not necessarily on the initial mechanism causing the injury.

Report Writing Tips and Comments

I would like to mention a few things that I have found useful in terms of producing a report that is not likely to be challenged by either side. The evaluation should attempt to clearly and fully answer all questions and issues in dispute and provide a solid empirical/objective basis for the conclusions. If this is done successfully, there is generally no reason for deposition.

Include comments in the text. As can be seen in the report, I am a big fan of including “comments” throughout.  In the section entitled, “Presenting Problem as Reported by the Applicant” I will often comment about what is being reported versus other data that is available (e.g. the medical records).  I believe that commenting throughout the report helps the reader understand the basis for conclusions or the reason for issues that are not addressed.

Review the records before the interview. Related to making comments in the report, I also believe it is important to review the medical records before seeing the claimant for the clinical interview.  Reviewing the records can help guide the clinical examination and help the examiner delve into areas that might be overlooked absent the information from the records. If the records are reviewed after the interview, and there are discrepancies or previously unknown information, it is very difficult to have the claimant return for an additional interview. It is not always possible to get the records reviewed beforehand, but it is highly recommended.

Comments in the review of records.  I will also often make comments in the review of records (ROR).  This can address such issues as whether the ROR information is consistent with what the applicant reported, whether previous psychological/psychiatric results are consistent, etc.

Psychological testing. The psychological test battery should be tailored to the presenting problem. I have peer reviewed countless reports in which it was clear that the examiner used the same tests on all individuals no matter what.  I also include a description of the test along with the test data. As is well known, there can be great latitude in how test data is interpreted. By providing the test data, along with my interpretations, there is no question about where the conclusions are emanating from.  Also, it is important to have at least one test that has some measure of validity and response-bias. 

Psychiatric diagnoses.  After listing the diagnoses, I think it is important to discuss why the applicant meets the criteria for the disorder(s). To highlight certain decision-making issues, I use comments for further explanation.

ACOEM work-relatedness approach.  I use the six-step approach to assess work-relatedness (AOE/COE) as can be seen in the report. This helps the parties understand how the causation issues was approached and determined (versus just reporting the conclusion that the disorders were or were not work-related).

Credibility of the claimant.  I always include some discussion of the claimant’s credibility.  If symptom amplification is found, then it is important to discuss the ramification of the finding (e.g. due to stress, due to impression management to communicate suffering, due to malingering, etc.).

Causation.  It is important to discuss whether there is a primary psychiatric injury, derivative psychiatric injury, or both. This is essential post-SB863.

GAF determination.  Similar to all other conclusions, it is important to discuss how the GAF was determined (versus just reporting a number). This will allow the parties to see that there was some objective approach to the GAF (and WPI) determination.

Apportionment.  Similar to other areas, there should be some discussion about how apportionment values were determined. This should include any possible area of apportionment, no matter how small, even if the apportionment to the area is 0%. This shows the parties that all areas of possible apportionment were considered. The special case of apportionment between primary and derivative psychiatric injuries (and associated impairment) should be discussed.

Provisional Conclusions. Although not shown in these case examples, I will occasionally address all issues in dispute, but label some of the conclusions as “provisional” pending receipt of additional information. In these cases, it allows the parties to proceed with negotiating a settlement based on my provisional findings or, if so desired, provide me with more information to possibly refine the conclusions.

Caveat Regarding Conclusions. Similar to the above, I will often include the following caveat if I do not have all the records relative to a case: “If either of the parties disagrees with any of the findings in this report, I will require additional records and more information. This includes the following:……” This allows the parties to decide whether to accept my findings and move towards settlement or provide more data for analysis.  

References.  I think it is important to use references and research related to various conclusions. Since these case examples are rather unusual, the references discussing the conditions are included. Other references support the report’s conclusions.

Case Examples

Please review the following case examples: Case Example #1 and Case Example #2.

NOTE: All of the identifying information related to the case has been changed. The reports include information from a variety of cases to develop this fictitious example.

NOTE:  The test question help-prompts do not work for information contained in the case example reports.