The term “sudden and extraordinary” might sound like a term suited to describe one of Steph Curry's game winning three-pointers, or a clutch pass from Tom Brady clinching a comeback win.
But in the California work comp world it's a vague but critical statutory term that can determine whether an employee of less than six months duration can maintain a compensable psychiatric injury claim. The term is part of Labor Code 3208.3. Years ago the legislature was concerned with an explosion of psychiatric stress case filings, and acted in 1989 ,1991 and 1993 to impose limits on psyche claims.
A January 2018 California Court of Appeals decision, State Compensation Insurance Fund v. WCAB (Jose Guzman) provides the latest analysis of what “sudden and extraordinary” means in a legal context (see link at bottom of this post for the text of the decision).
In Guzman the injured worker was a construction laborer operating a soil compactor, packing dirt over a newly laid pipe on a hillside. It was a seven foot long 45-degree slope. Mr. Guzman apparently hit a rock, causing him to fall backwards, resulting in injury when the compactor fell on him. The physical injury was covered and he had two surgeries. But Guzman's claim of psyche sequelae from the physical injury was rejected under the six-month rule.
There have been a host of WCAB panel decisions on the sudden and extraordinary issue. The following is not a comprehensive or exhaustive list, but some examples may be useful in seeing how the WCAB has dealt with the issue.
Cases finding that there was a “sudden and extraordinary” injury:
–Valdez V. Pinnacle Builders (2006) 34CWCR at 164 (while carpenter was removing nail from a board the nail popped out of the board, ricocheting into his eye);
–Chapman v. Curran's Custom Plastering (LAO 0778727) (2007)(plank on scaffold broke, causing worker to plunge to ground);
–Campos v. WCAB (2010) 1stDCA (writ den) (tree climber/cutter using chainsaw while in harness was hit by piece of tree that broke free);
–Duong v. RGW Construction (2010) (ADJ 3040750)(worker on scaffold injured when scaffold fell after a worker on the ground started disassembling it while injured worker was up on it);
–Kurt Jaeger v. Federal Heath Sign Co. (ADJ2705160) (2010) (sign installer injured when an elevated ledge collapsed while he was moving material from ledge to scissor lift);
–Rosa Maria Saavedra V. JLG Harvesting (ADJ6464929)(2011) (field lettuce worker felt stinging sensation in hand and eventually developed inflammation that resulted in amputation. Interestingly, the WCAB panel of Brass, Cuneo and Moresi upheld a WCJ recommendation that “The critical elements in establishing a sudden and extraordinary employment event under Labor Code Section 3208.3 include not only the mechanism of injury but also the circumstances or consequences flowing from the injury”. This decision seems to be an “outlier” in that it introduces the criteria of extent/seriousness of injury into the calculation as to whether it is sudden and extraordinary.
–Docena v. Layne Christensen (ADJ9436011)(2016) (worker injured when cable suspending wrecking ball from crane snapped and he jumped out of the way);
But other panel decisions have determined that the circumstances of injury were not “sudden and extraordinary”:
–Romero v. CIGA (33 CWCR 75)(2005) (fall from a ladder);
–Puga V. WCAB (35 CWCR at 54)(2007) (fall from ladder while working on ceiling fan);
–Bayanjargal v. WCAB (2006) 71 CCC 1829 (slip and fall from a roof);
–Jackson v. City of LA (ADJ1296930)(2011) (meter maid hit by vehicle while trying to issue citation);
–Mayra Enriquez v. Nouveur (ADJ 2582936) (2011) (worker caught hand in sewing machine);
–Jose Cortez Alaniz v. Clearpoint (ADJ1721425)(2011) (workers' hand pulled into saw as he was grabbing a plank);
–Oscar Pineda v. Magic Fix Auto (ADJ8479429) (2016) (fall from ladder)
But three leading Court of Appeals cases on the subject are examined by the Guzman court in its analysis.
In Matea v. WCAB (2006) 144 Cal.App.4th 1435, the 6th DCA found that being struck by a rack of falling lumber at a Home Depot store was “sudden and extraordinary” so as to allow a psych claim for an employee who had worked less than six months on the job. The Mateacourt distinguished sudden and extraordinary events that are uncommon, unusual and totally unexpected from regular and routine employment events that may foreseeable occur.
But in SCIF v. WCAB (Garcia) (2012) 204 Cal.App.766 the 2nd DCA found that an avocado picker's fall from a ladder was not “sudden and extraordinary”.
And in Travelers Casualty & Surety V. WCAB (Dreher) (2016) 246 Cal. App. 4th 1101, the 1st DCA rejected an argument that falling on a rain-slicked concrete walkway was extraordinary.
Putting all this together, the 6th DCA in Guzman finds that Mr. Guzman failed to demonstrate a “sudden and extraordinary employment condition”. In the view of the court he failed to show that hitting a rock with the compactor would be uncommon, unusual and unexpected, so it was not extraordinary that the incident happened. Furthermore, because he had been working on the slope for a half hour, the court did not believe the incident was “sudden”.
While the “extraordinary” aspect of the Guzman incident may be in question where he was working with a compactor, it seems odd that the court questioned the “sudden” aspect. Many injuries occur after a worker has been doing a task for a while, so the finding it was not “sudden” seems disingenuous where the worker clearly had an eventful thing happen without notice.
If anything, though, a review of these cases shows that they are very “fact dependent”. We'll continue to see litigation over what constitutes “sudden and extraordinary”.
Here is the opinion in SCIF v. WCAB (Jose Guzman)(2018) (as of January 2018, ordered not published):
Since beginning his legal practice in 1979, Julius Young has represented thousands of individuals who have sustained life-changing injuries or illnesses while on the job. In every case, his goal is to secure the medical treatment his clients need and the maximum benefits they are allowed so they and their families can survive potentially devastating circumstances. He often represents union members such as workers from the building and construction trades, Teamsters, health care workers, grocery retail clerks, machinists and others.
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