This month our Case Briefs deal with violence and criminal actions in a workers’ compensation case. The poetry of violence is incorporated into the framework of these Case Briefs. We will provide the poetry of workers’ compensation in the upcoming months. Please contact our attorneys for assistance with your workers’ compensation claims.
– Kenneth W. Scott, Esq., Associate Partner, Bakersfield Office
O violence! What song shall be sung for you? – Ray Smith 1946
HOW TO LITIGATE A VIOLENCE CASE TO THWART ADDITIONAL PERMANENT DISABILITY
An injured worker may file a psychological injury claim either based on acts of employment or as a consequence of a physical injury. Physical-mental injuries may be described as physical injuries that resulted in psychological trauma or symptoms. Such injuries are classified as a “compensable consequence injury.”
Unlike the other classes of psych injuries, Labor Code § 4660.1(c)(1) provides that there is no increase in impairment rating for “sleep dysfunction, sexual dysfunction or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury.” Thus, if an injured employee has a physical-mental injury there may be no increase in permanent disability, but the employee may be entitled to treatment and other benefits.
Notwithstanding the above, Labor Code § 4660.1(c)(2) provides two exceptions to the bar against increase in permanent disability. The first exception is when the compensable psych disorder resulted from being a victim of a violent act or from direct exposure to a significant violent act under section 3208.3. The other exception deals with a catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury. Our focus is on the first exception.
Applicants now claim that all serious injuries are a violent act. You may see cases like an injured employee falling from a certain height with serious orthopedic injuries. In some others, the employee was injured by a falling machine. The injured employee, because of the extent of injuries from the falling machine and other factors, may have a psych disorder. It is not uncommon in such cases to see the employee argue that the psych disorder is due to a violent act. The argument may focus on the nature and extent of the injury itself because ‘violent act’ is not a term defined with specificity under the Code.
What then is a violent act? Case law may be our guide as to the meaning of violent act. In Wilson v. State of CA Cal Fire (2019) 84 CCC 393 (Appeals Board en banc) ‘violent act’ was described as either strong physical force, extreme or intense force or an act that is vehemently or passionately threatening. Further, the Board explained that in finding a violent act, the focus is on the mechanism of the injury, rather than the injury itself.
A recent decision of the Board (though not designated as a significant panel decision) delivered on May 23, 2022, may help drive home the point being made. The case from which the decision emanates is Julian Sosa v. Race Engineering, Inc., Insurance Company of the West, WCAB No. ADJ11024874.
In that case, the injured employee claimed the injury occurred when he was loading a heavy ice machine that tilted and fell towards, him causing injury to his hand when he put up his hand to get out of the way. The injured employee was later diagnosed with depressive disorder by the qualified medical evaluator (QME). The QME opined that the occupational physical injury with the pain the employee suffered therefrom, was the “predominant cause” of the employee’s depressive disorder.
The injured employee, however, contended that his depressive disorder was directly caused by the injurious event, contrary to the QME’s opinion that the disorder was predominantly caused by the physical injury and accordingly, a compensable consequence of the physical injury. In the alternative, he argued that the psych disorder resulted from a violent act, thus, he is entitled to increase in permanent disability. The employee further argued that the amendment subsequent to Wilson’s decision that became effective January 01, 2020, was intended to change the law in Wilson and provide permanent impairment. These arguments were rejected.
The Board rejected all the employee’s arguments while relying on Wilson to explain that the focus on the mechanism of injury comports with the statute’s language. That the statute emphasizes the event causing the injury, rather than the injury itself: the statute expressly refers to being a victim of or direct exposure to a violent “act.” The focus when evaluating whether an injury qualifies for the exception in section 4660.1(c)(2)(A) is, therefore, on the mechanism of injury, not on the injury itself.
The Board concluded that the employee’s injury occurred when he tried to stop an ice machine from falling. The force of the incident could not be characterized as either extreme or intense, such as being struck by a car, falling from a tree, or being struck in the head multiple times. Further, the Board held that the incident could not be characterized as vehemently or passionately threatening.
Our take from the decision for workers’ compensation practitioners are as follows:
- The Wilson’s definition of violent act is still the standard. That is, in finding a violent act, the focus is on the mechanism of the injury, rather than the injury itself.
- The amendment subsequent to Wilson’s decision that became effective January 01, 2020, did not alter the law in Wilson.
- Analysis of whether psych disorders fall within the violent act exception has nothing to do with the extent or nature of injury, or the injury itself but the mechanism of injury.
- In physical-mental claims, practitioners should always ask: Can the mechanism of injury be characterized as extreme or intense force, or vehemently or passionately threatening? If the answer is no, there should be no increase in permanent disability for psych disorders caused by physical injuries.
Ekojoka Aghedo, Esq., Associate Attorney, Bakersfield Office, August 2022
“We were not committing crimes just reading poems . . .” Vladimir Bukovsky 1960
How Not to Claim a Work-Related Injury when Committing a Crime
The Labor Code provides numerous mechanisms to limit workers’ compensation proceedings that, to the uninitiated in our line of work, would appear clear and definitive. To name a few: the notice of injury must be provided to the employer within 30 days (section 5400); proceedings may be commenced one year from the date of injury or last date of payment of benefit (section 5405); the claim form must be filed before notice of termination or layoff (section 3600(a)(10)); and, of course, the injury must arise out of and in the course of employment (section 3600.)
However, we know the courts must liberally construe the Code in favor of extending benefits to injured workers, and so, definitive language notwithstanding, the defenses do not always hold up.
Today, we get to revisit a not often used Labor Code Section 3600(a)(8), courtesy of the recent WCAB Panel Decision: Christopher Johnson v. Lexmar Distribution dba LDI Trucking, Inc., No. ADJ14203968, 2022 WL 2663880 (July 1, 2022).
First, the statutes, with emphasis added to the “elements” of the defense. Subsection (a)(8) provides:
“(8) Where the injury is not caused by the commission of a felony, or a crime which is punishable as specified in subdivision (b) of Section 17 of the Penal Code, by the injured employee, for which he or she has been convicted.”(emphasis added)
Moreover, Penal Code, section 17(b) provides:
“(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances….”(emphasis added)
At issue, in Johnson, was whether the applicant’s claim was barred by subsection (a)(8) where he had pled guilty to a misdemeanor, not a felony. In sum, the unanimous panel, adopting the trial judge’s findings, held that the claim was barred because the applicant pled guilty to a crime that was punishable with “imprisonment in the county jail.”
Here are the relevant facts:
- The applicant is a truck driver employed by defendant making runs from California to Arizona.
- He was stopped by the Arizona State Police for making an illegal U-turn.
- He was argumentative, refused to identify himself, provide his driver’s license, registration or insurance cards.
- He sustained an injury when he was forcibly removed from the cabin by the officers and pulled to the ground.
The trial judge relied on the following:
- The applicant’s trial testimony which she found was untruthful because he denied there were charges pending or that he had been convicted of any crimes.
- Court records showing the applicant was arrested and taken to jail for five misdemeanor infractions; and a record showing the applicant pled out on two charges: Count 1: Ariz. Statute 28-622A – failure or refusal to comply with a lawful order, misdemeanor, 2nd degree; and Count 2, 281595B – Failure to Show Driver License or Identification, misdemeanor 2nd
- The trial judge also reviewed footage from the cabin showing the incident with the officers. (Tangentially, the footage did not show the applicant making “overt moves or threatening gestures” and so the trial judge held the applicant was not an “initial physical aggressor” per subsection (a)(7.)
The trial judge then reached the following conclusions:
- In comparing California Penal Code Section 17(b) with the Arizona Statutes, she found both are misdemeanors punishable by jail time and fines, and they are thus “equal under the law for the applicability of the defense.”
- Subsection (a)(8) does not require the applicant serve jail time, although here the applicant in fact did.
- The applicant contributed to his own injuries in that, had he complied with the officers, there would have been no injury.
What are our “take-homes”? Surely, video footage of the incident in question was good to have (in this case), and it is never good for the applicant when the trial judge finds you have lied to them.
More than that, it mattered not that this was an out-of-state injury and criminal statute, nor that it was not a felony. For purposes of the defense, we must compare the relevant criminal statutes and if both are misdemeanors punishable with jail time, then the defense may apply.
The causal connection between the criminal conduct and the injury here was evident. He was injured while being forcibly removed for failing to comply with the officers’ lawful orders, and he pled guilty for failing to show his identification and failing to comply with the order.
Lastly, pleading guilty to the misdemeanors meant he had been convicted.
The defendants in the case on reconsideration apparently for the first time also argued that the applicant made a “deviation of his work duties” and thus the injury did not arise out of an in the course of employment. The WCAB summarily denied the petition as untimely. That is certainly a colorable argument, and I wish it had been addressed here. I would expect the defendant employers’ policy manual would have included an employee conduct requirement which would include obeying traffic laws.
Moral of this story for an Applicant: never plead guilty; for a Defendant: always try all issues.
Jorge Tena, Esq., Associate Attorney, Bakersfield Office, August 2022