Most everyone knows that an applicant has to be employed for 6 months for a psychiatric claim to apply. Of course there are limitations. The 6 months do not need to be continuous and if the applicant continues to work past the 6 months the defense is no longer available. On the bright side, if the defense is not raised initially, it can still be raised later. (James v. WCAB (1997), 55 CA4th 1053). This is important under the current law since most applicant attorneys now add psyche to the applicant’s claims in an attempt to increase the settlement figure.
Even with a solid 6 month employment defense, it is not an automatic defense and there are exceptions to the rule. The main exception is a sudden and extraordinary injury. The interpretation of sudden and extraordinary has resulted in a lot of litigation and the courts appear to be all over the board in their decisions. When looking at the decisions, all seem to agree almost any specific injury is sudden. The disagreement is on what is extraordinary.
The test to determine whether the event was a “sudden and extraordinary” work event within the meaning of LC §3208.3(d) is “whether a reasonable person would find the employment event to be sudden and extraordinary in terms of employment conditions, i.e., whether the subjective belief was objectively reasonable.” (Murad v. WCAB, (W/D-2001) 66 CCC 1223). The court has described an “extraordinary” employment condition as something other than the “normal routine work.” (Hansen v. WCAB, (1993) 18 CA4th 1179). The courts have also noted an “extraordinary” employment condition may also be that which will cause injury to psyche as a foreseeable consequence. (War-Mart Stores, Inc. v WCAB (Garcia) (2003) 112 CA4th 1435).
A good way to determine whether the event is sudden and extraordinary is whether or not the injury could be reasonably expected to happen. For example, a roofer falling off a roof is not extraordinary. While the injury may be a sudden event, it cannot be characterized as an extraordinary event. It is the very risk of such falls that makes the type of employment in which a roofer is engaged a very expensive occupation to insure in workers’ compensation. (Bayanjargal v. WCAB,(W/D 2006) 71 CCC 1829).
In contrast, lumber suddenly falling on a passing clerk is extraordinary. (Matea v. WCAB, (2006) 144 CA4th 1435). This type of event is uncommon, unusual, and totally unexpected, and something that would naturally be expected to cause psychic disturbances even in a diligent and honest employee. But note that in this case, the lumber fell on the applicant after the store closed when a wall shelf gave way. The court pointed out that no testimony was presented regarding how often the shelves gave way so the court assumed that such occurrences were quite rare, given that those aisles were open to the public.
What does this mean? Each case will be considered based on the facts in that particular case. Defendants must take steps, as soon as possible, to show such an event is not extraordinary. Additional investigation may be required to show the injury was not extraordinary. Remember to review the workers compensation insurance for that occupation because a higher than normal cost is evidence that such injuries are anticipated as a possibility. Remember, it may seem like a sudden and extraordinary injury when it is first considered but a closer evaluation may reveal the exact nature of the injury being of the type one would expect for that applicant’s occupation.