California: A Violent Act Is Not Necessarily Sudden & Extraordinary

Lately, there has been quite a bit of litigation over the relatively new Labor Code § 4660.1(c), which mandates that for dates of injury on or after January 1, 2013, there may be no increase in Whole Person Impairment (WPI) for sex, sleep or psych impairments that are compensable consequences of physical injuries. Sounds easy enough. For instance, if an injured worker has an industrial failed back surgery, she cannot automatically increase her permanent disability award by adding claims for sexual impairment, sleep disorders or psychiatric issues. However, if “violence” plays a role in causation of the psychiatric injury, then Labor Code § 4660.1(c) may not apply at all.

I. Labor Code’s Use of the Term “Violent Act”

The term “violent act” is used once in Labor Code § 3208.3. Labor Code § 3208.3 provides a roadmap for parties to follow in order to meet the threshold requirements for establishing or denying a psychiatric claim. See Rolda v. Pitney Bowes (2001) 66 Cal. Comp. Cases 241 (WCAB en banc decision).

Labor Code § 4660.1(c)(2)(A) provides an exception to the bar for WPI increases for psych injuries, if applicant is “a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3.” Although Labor Code § 4660.1(c)(2)(A) refers to the “meaning” of “violent act” per Section 3208.3, “violent act” is not defined in Labor Code § 3208.3. In addition, each of the two categories of “violent acts” (the one in Labor Code § 3208.3 and the one in Labor Code § 4660.1(c)(2)(A)) serve a different purpose, and may or may not be interchangeable.

A. Violent Acts Serve to Lower Causation Threshold (Lab. Code § 3208.3)

The burden of proving a psychiatric injury under Labor Code § 3208.3 is substantially higher than that for proving a physical industrial injury. A worker must prove that some industrial cause greater than one percent (1%) contributed more to her physical injury. For psychiatric injuries, the worker must establish that actual events of employment were the predominate (51%) cause of her psych injury. If a violent act was the cause of the psych injury, then this causation threshold drops to just a substantial (35%) cause of the injury.

In the case of Clacher v. WCAB (2015) 80 Cal. Comp. Cases 182 (writ den.), a co-worker struck applicant causing him to fall to the ground, resulting in a psychiatric injury. It was determined that the cause of the injury (being struck by a co-worker) constituted a violent act. However, even though the causation threshold was lowered from 50% to 35% due to the “violent act,” the applicant’s claim was deemed non-compensable, since the Qualified Medical Evaluator (QME) found causation of the psychiatric injury to be 25%, and not the 35% required by Labor Code § 3208.3.

B. Violent Acts Exempt Bar to WPI for Psych (Lab. Code § 4660.1(c)(2)(A))

When drafting Labor Code § 4660.1, the legislators recognized a need for differentiating between stress-caused psychiatric illnesses and those caused by violent acts. When Labor Code § 4660.1 was created to bar an increase for WPI for psych injuries, the legislature exempted injuries that were caused by “violent acts.” (Labor Code § 4660.1(c)(2)(A).)

In the Noteworthy Panel Decision (NPD) of Liu v. Hawaiian Gardens Casino, 2017 Cal. Wrk. Comp. P.D. LEXIS 315, Yan Liu was a card dealer for Hawaiian Gardens Casino for over twelve years. She filed a workers’ compensation claim for a cumulative trauma ending 9/10/2014 for various physical injuries, as well as an injury to her psyche. Applicant claimed that her psychiatric injury was not barred by Labor Code § 4660.1(c) because the exposure to “violent” gamblers over the course of her employment was a substantial cause of her psychiatric injury.

Applicant argued that since the mechanism of injury for her psychiatric disorder was due to “violent acts” (i.e., the violent behavior of the gamblers that frequented her place of employment), that she qualified for the “violent act” exception under Labor Code § 4660.1(c)(1)(A), which exempts psychiatric injuries from the WPI increase bar.

The WCAB noted that the medical evidence was not clear on this issue and returned the case to the trial level “to determine whether applicant sustained a compensable psychiatric injury (§3208.3) and if so, what portion of applicant's psychiatric impairment is compensable (§4660.1).”

PRACTICE NOTE: Most of these psychiatric cases have very complicated burdens of proof. The physicians are not always clear on the correct legal terms and concepts to use in order to “bullet proof” the medical evidence. Prudent practitioners should usually take the deposition of the medical-legal evaluator in these cases to ensure the physician understands the correct burden of proof which she or he must discuss, so that the exhibits in the case will constitute substantial medical evidence if the case goes to trial.

II. Definition of “Violent Act” Under Lab. Code § 4660.1

Prior to enactment of Labor Code § 4660.1, there was not a lot of factual interpretation as to how “violent act” should be defined as used in Labor Code § 3208.3. In the Noteworthy Panel Decision (NPD) of Larsen v Securitas Services, 2016 Cal. Wrk. Comp. P.D. LEXIS 237, the WCAB provided a “dictionary definition” of the term as used in Labor Code § 4660.1. Essentially, Black’s Law Dictionary 7th edition 1999 defines “violent” as:

“…an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.”

In the case of Larsen, a guard was hit by a car while walking her usual security rounds through her employer’s parking lot. The car hit her from behind with enough force to knock her to the ground and to cause her to lose consciousness. As a result of this incident, the QME diagnosed applicant with three psychological conditions: cognitive disorder, post-traumatic stress disorder, and depressive disorder.

Defense claimed that since the act that caused the injury was not of a criminal or quasi-criminal nature, it did not constitute a violent act. The WCAB disagreed, applying the Black’s Law Dictionary definition to the facts in this case. They deemed the incident was indeed a “violent act.” The Workers’ Compensation Judge’s (WCJ’s) awarded increased WPI for applicant’s psych injury and this holding was affirmed by the WCAB.

In the NPD of Zarifi v. Group 1 Automotive, 2018 Cal. Wrk. Comp. P.D. LEXIS 300, applicant struck his head against a glass wall. However, the glass did not break. He did not fall to the ground and, more importantly, at least as far as the case law is concerned, applicant did not lose consciousness. The WCAB determined this incident not to be considered a “violent act” which would allow applicant an increase in WPI for his psych injury. The WCAB explained their decision by comparing the facts in this case to the facts in other cases where they did determine the act of causation to be a “violent act” as follows:

“The force of the incident was neither extreme or intense, such as being struck from behind by a car causing a loss of consciousness [Larsen, supra], falling from a tree, losing a helmet and striking his head multiple times while hanging by a tether, [Greenbrae Mgmt v. WCAB (Torres) (2017) 82 Cal. Comp. Cases 1494 (writ den.)] or being pinned and crushed in the cab of a truck for 35-40 minutes after rolling it over in an accident [Madson v. Cavaletto Ranches, 2017 Cal. Wrk. Comp. P.D. LEXIS 95]. (Emphasis added by author)

PRACTICE NOTE: It is interesting that the WCAB appears to give a great deal of weight to fact patterns where the applicant has lost consciousness after an incident. In the majority of cases where the applicant has lost consciousness after the work incident, the injury is deemed to be caused by a “violent act.” However, in cases where the applicant has not lost consciousness after the work incident, the injury is deemed NOT to have been caused by a “violent act.” Coincidence? Maybe…maybe not.

III. “Violent Acts” Are Not Interchangeable with “Sudden & Extraordinary”

Another common theme running throughout all of these “violent act” cases is the mandate from the WCAB to not confuse the term “violent act” with “sudden and extraordinary.” The former is characterized by threatening physical force, while the latter must be “uncommon, unusual and unexpected.”

The term “sudden and extraordinary” is also found in the “Threshold for Psych Injuries” statute of Labor Code § 3208.3. The statute bars compensation for psych injuries in circumstances where the applicant has not been employed by his employer for more than six months, EXCEPT when the psych injury is caused by “a sudden and extraordinary employment condition.” Case law has defined “sudden and extraordinary” by using the term, “uncommon, unusual and unexpected.”

This “uncommon, unusual and unexpected” standard can be found in a plethora of case law, including the 2nd DCA case of Bayanjargal v. WCAB (2006) 71 Cal. Comp. Cases 1829 (writ den.), dealing with a roofer who fell from a roof. The court explained that although the roofer’s fall was sudden, it was not “uncommon, unusual or unexpected” for a roofer to fall from a roof. Therefore, the worker in this case was not entitled to workers’ compensation benefits since he had not been employed for more than six months.

Compare the Bayanjargal case with the writ denied case of Greenbrae Mgmt v. WCAB (Torres) (2017) 82 Cal. Comp. Cases 1494 (writ den.). The Torres case dealt with a tree trimmer who fell out of a tree and lost consciousness. The WCAB believed these facts fell within the definition of “violent act” to qualify applicant for the “violent act” exception under Labor Code § 4660.1 and allow him an increase in WPI.

The WCAB took this position in Torres, despite a long line of similar fact patterns in “sudden and extraordinary” cases, which held that roofers who fall off of roofs and gardeners that fall off of ladders do not qualify for the “sudden and extraordinary” exception to the six-month employment rule of Labor Code § 3208.3 in order to allow them to claim a psych injury.

In the case of SCIF v. WCAB (Garcia) (2012) 204 Cal. App. 4th 766, 77 Cal. Comp. Cases 307, the 2nd DCA dealt with an avocado picker, who had been employed for less than six months. He fell off of a ladder and injured his head, which resulted in his psychiatric injury. In order to be compensated for an industrial psychiatric injury under Labor Code § 3208.3(d), Mr. Garcia was required to prove that he was employed for more than six months, before his injury. But this was not possible. Therefore, his only hope was to establish that his psych injury had been caused by a “sudden and extraordinary” event, in which case, pursuant to Labor Code § 3208.3(d), the six-month employment threshold rule would not have applied. The 2nd DCA admitted that, just like the roofer who fell from the roof in the Bayanjarga case, Mr. Garcia’s fall was sudden, but it was not “extraordinary” because in their minds, a roofer falling off of a roof or an avocado picker falling from a ladder could not be considered an uncommon, unusual and unexpected event. Therefore, Mr. Garcia was barred from receiving increased WPI compensation for his psychiatric injury.

Again and again, the courts have repeated the same refrain, that “sudden and extraordinary” events under Labor Code § 3208.3(d) must be “uncommon, unusual and unexpected.” “Violent acts,” on the other hand, must be “characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.” The result is that there are two totally distinct and separate analyses for two distinct and separate types of acts, for which the parties have two distinctly different burdens of proof.

IV. Aren’t Acts of Workplace Violence Considered Sudden & Extraordinary?

As stated above, in order to qualify as sudden and extraordinary to escape the Labor Code § 3208.3(d) six-month employment rule, the act must be “uncommon, unusual and unexpected.” But an exception to this standard is allowed in cases of “workplace violence.” Therefore, are cases of “workplace violence” the same as “violent acts?” And would this fact then merge the definitions of “violent act” with “sudden and extraordinary” acts? Apparently not.

In footnote 9 of the case of Walmart v. WCAB (Garcia) (2003) 112 Cal. App. 4th 1435, 68 Cal. Comp. Cases 1575, the 4th DCA noted,

“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... In our view, the ‘sudden and extraordinary’ language is limited to occurrences such as gas main explosions or workplace violence—the type of events which would naturally be expected to cause psychic disturbances even in a diligent and honest employee.”

Although rejecting common everyday “accidents” as being “sudden and extraordinary,” the 4th DCA did acknowledge that “workplace violence” would be included in the definition of “sudden and extraordinary.” The issue then is, how does one draw the line between a common place “accident” and “workplace violence”? The DCA has issued several cases wherein they have decided when a “workplace accident” constitutes a “sudden and extraordinary” event, and when it does not.

In the case of Matea v WCAB (2006) 144 Cal. App. 4th 1435, 71 Cal. Comp. Cases 1522, a stack of lumbar fell off a rack in a store and landed on an employee, who claimed a psychiatric injury, even though he had not worked at the store for more than six months. The 6th DCA determined the incident to be “sudden and extraordinary” allowing applicant to receive workers’ compensation benefits for his psych injury, since the incident was deemed to be “uncommon, unusual and unexpected.”

As discussed above, in the case of SCIF v. WCAB (Garcia) (2012) 204 Cal. App. 4th 766, 77 Cal. Comp. Cases 307, the 2nd DCA determined that Mr. Garcia’s fall from a ladder while picking avocadoes was sudden, but it was not extraordinary within the meaning of Labor Code § 3208.3(d). The court explained that falling off a ladder “was an occupational hazard of picking avocados” and thus was not uncommon, unusual and unexpected.

In the Noteworthy Panel Decision of Raiszadeh v. City of Riverside, 2017 Cal. Wrk. Comp. P.D. LEXIS 225, the WCAB determined that the facts of “workplace violence” in this case did constitute an exception to the six-month employment threshold of Labor Code § 3208.3(d), because the nature of the event was “sudden and extraordinary.”

In Raiszadeh, a social worker, who had worked for the City of Riverside for less than six months, was hit on the head by a minor child during a home visit. Thereafter, as a result, she suffered a psychiatric injury. Defendants claimed the psych injury was barred due to the six-month employment threshold of Labor Code § 3208.3(d).

When deciding the case, the WCAB first noted that contrary to “the discussion in the WCJ’s Report and the defendant's petition, the concepts of ‘sudden and extraordinary’ and ‘violent act’ are not interchangeable.” (Emphasis added.)

The WCAB then explained their conclusion as follows:

“It is the declared policy of the State that workers are to be provided a safe workplace free from violence. (§ 6400(a) …Notwithstanding public policy, there may be cases where the nature of one's work necessarily involves violent situations (i.e. a police officer, a prison guard, a firefighter, etc.) and where the nature of one's work is violent a further factual analysis must determine whether an act of workplace violence is uncommon, unusual, and unexpected. However, here, we do not find on the evidence presented that applicant, a social worker, was engaged in a violent occupation, such that she was expected to be physically assaulted by a member of the public on a common or routine basis. Thus, we find that applicant's injury was caused by a sudden and extraordinary event of employment.”

V. Conclusion

Going forward, the challenge will be to distinguish which fact patterns constitute a “violent act” and which constitute a “sudden and extraordinary” event. As discussed above, the burdens of proof for both are different. In addition, the term “violent act” has been used in several different contexts when analyzing compensability for psych claims. Practitioners should carefully study the case law to determine the facts that most closely resemble the facts in their particular case, to ensure they do not meet any unnecessary roadblocks when presenting their case to the trier of fact.

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