Last week a client called and asked for some input on compensability of a claim with an odd factual scenario related to causation. These facts sent me down a rabbit hole of legal research that ultimately became this article. Here is the intriguing – yet deeply troubling – facts and analysis. WARNING: If you have a weak stomach, proceed no further!
Employee Johnny Asphalt is a municipal maintenance worker, employed by Small-Town, California. Johnny runs a small crew of other municipal employees that perform maintenance work throughout the town. Most of their work is done outdoors and within the view of the general public and within public spaces.
Road maintenance is a part of Johnny’s many job duties in Small-Town. One fine afternoon, Johnny and his crew are out and about painting “fog-lines” on one of the many roads that run through Small-Town. “Fog-lines” – if you want to impress someone at your next cocktail party – are the lines painted on a road (usually bright white) that marks the edge of the legally drivable portion of the roadway. In any event, and turning our attention back to Johnny and his crew, they were always conscientious of the risks and hazards present when working on a public roadway, so Johnny and his crew had set out orange cones and taken all of the necessary safety precautions to protect themselves from the surrounding traffic.
Engrossed in his work, Johnny suddenly hears the honk of a car horn, a loud “thump” and a few seconds later someone crying out “call 9-1-1!”.
Worried that one of his crew has been injured on the adjacent roadway, Johnny drops his work tools, abandons the work activities and runs towards the sound and commotion of a nearby motor vehicle accident. Johnny moves approximately 150 feet away from the area where he was performing his work duties for the city.
Upon arriving at the scene of the alluded-to accident (none of which Johnny observed), Johnny sees a young woman (a bicyclist) wobbly but getting to her feet after having apparently been hit by a car and knocked off her bike. At the exact same moment that Johnny observes this young lady – and makes the realization that none of his crew have been injured – another passing vehicle (operated by a TERRIBLY inattentive driver) slams into the already injured bicyclist and drags her 200 feet further down the roadway. Johnny gives chase on foot, finally bringing the other car to a stop. Once Johnny gets to the vehicle involved in the second collision, he observes the tragic and gory remains of the now deceased bicyclist.
Not surprisingly, Johnny is traumatized by this incident. He claims PTSD as a result of what he’s observed, and further claims he can no longer perform his job duties for the city. The threshold question then becomes:
Is Johnny’s claim (for PTSD) industrially compensable?
First and foremost, what I found most shocking about this factual scenario is that – in all of the years that California Workers’ Compensation law has been in place (since Oct. 10, 1911, in case you are still trying to impress at that boring cocktail party) – there has never been a factual scenario where an employee has claimed a psychiatric injury for having observed from a distance a crime or violent act – perpetrated upon another – but not directly related to the employees work site or work activities. So, unable to see how the Board would address and handle this factual scenario (by reading past case law) we must piece together the issues in play here and decide as to whether or not Johnny has a compensable claim.
First, we must acknowledge that the injured worker’s claim does not involve a “physical injury” component. It is – as we say – a pure “psyche” injury. When we talk about psychiatric injuries, and the heightened threshold regarding compensability, there really needs to be some connective tissue between the traumatic event and actual events of employment. By this I mean there must be some component of the work that ties into the traumatic event.
Labor Code § 3208.3, which governs workers’ compensation for psychiatric injuries, states in pertinent part:
“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.” (Labor Code § 3208.3, subd. (b)(1).)
This means that benefits for a psychiatric injury may be awarded only when the employee establishes that industrial factors account for more than 50 percent of the employee’s psychiatric injury. (See Pacific Gas & Electric Co. v. Workers’ Comp. Appeals Bd. (2004) 114 Cal.App.4th 1174, 1181 [8 Cal. Rptr. 3d 467,69 Cal. Comp. Cases 21] The language and legislative history of section 3208.3 instruct that the Legislature’s public policy goals should be considered when determining whether an award of benefits is warranted. The Legislature made quite clear that it intended to limit claims for psychiatric benefits due to their proliferation and their potential for fraud and abuse. Therefore, any interpretation of the section that would lead to more or broader claims should be examined closely to avoid violating express legislative intent.
A condition that must be satisfied before a particular factor can support an award of benefits under 3208.3 is that the factor must be an “event”; i.e., it must be something that takes place in the employment relationship. Also, the event must be “of employment”; i.e., it must arise out of an employee’s working relationship with his or her employer. (Pacific Gas & Electric, supra, at p. 1181.)
The phrase “actual events of employment” does not provide clear guidance because it is susceptible of many meanings. The Hanna treatise on California Law of Employee Injuries and Workers’ Compensation (rev. 2d. ed. 2007), at section 4.02[b], p. 4–22. Interprets the “actual events of employment” language of section 3208.3, subdivision (b)(1) as not including broad societal events or trends as events that arise out of the employment relationship. Hanna goes on to state that the “actual events of employment” language added by section 3208.3, subdivision (b)(1) can be interpreted as requiring the employee to establish “objective evidence of harassment, persecution, or other basis for the alleged psychiatric injury.” That interpretation is the one most consistent with the purpose of the statute, and is the interpretation applied by the WCAB in most cases. The WCAB’s statutory interpretation is entitled to great weight.
Now, Johnny’s actions – leaving the work site and traveling towards the commotion of the original impact/injury – appear to have been motivated by a singular factor: He believed that one of his crew (for whom he was responsible) may have been injured in an incident with a motor vehicle. Certainly, one can argue that this motivation is certainly within the AOE/COE “wheelhouse” for purposes of compensability. Johnny will argue that he was not acting any differently than any other supervisor in a similar situation. Johnny’s initial response to potentially aid a coworker in need has been found compensable by the Courts (See North American Rockwell Corp. v. WCAB (Saska) (1970) 9 Cal.App.3d 154)
But what about chasing down the second vehicle (that caused the death)? Johnny can surely make a case that he was acting as a “Good Samaritan” in an effort to get the vehicle to come to a stop and determine whether anything could be done to aid or save the life of the young bicyclist. Even after Johnny learned that none of his coworkers were in danger, his desire to stop the second car and potentially save the bicyclist would morph into a “Good Samaritan” analysis. Johnny was interjected into a horrific scenario and chose not to be just a passive observer. Furthermore, one can certainly imagine that Johnny – as an employee of the town – felt an obligation to do a little bit more for persons placed at risk within the municipality and upon its roadways.
It is the natural tendency of people to aid others in time of distress and has been recognized – since biblical times – to be one of the nobler characteristics of our humanity; Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore this naked human desire to offer aide, and in fact normalizes such action by adopting “Good Samaritan” statutes to protect those who move to rescue from any unanticipated consequences of their intentions. (In California, see Business & Professions Code § 2395, Health & Safety Code § 1799.102, and Government Code § 50086)
So, the desire to offer aide is normalized by the legislature. What about the courts? Can the employer argue that Johnny deviated from the course and scope of employment, and took actions that did not arise out of his employment because his work duties did not include chasing down a hit & run driver and seeing the gory aftermath of that driver’s negligence? In considering this, we must look to other cases that have considered whether an employee responding to an emergency situation – acting as a “Good Samaritan” is engaged in an action arising out of and in the course of employment.
In Ocean Accident & Guarantee Corp. v. Industrial Acc. Com. (Nelson) (1919) 180 Cal. 389 [6 I.A.C. 182], the California Supreme Court found that an employee who was injured while rescuing a child from being run over by a car on the employer’s premises was in the course and scope of his job duties, despite having – momentarily – stepped out the role for which he was hired in order to render the aid. While recognizing that the injured employee was not employed to rescue children, the Court reasoned to do so was within the course of his employment, and within the scope of those things which might “reasonably be expected” of him as an employee. The Court found intrinsic benefit to the employer by the employee’s actions, since the employer could have been found – in part – responsible for injury to the child and sued.
In Nelson, supra, the California Supreme Court has reasoned that – in doing the natural and humane thing in an emergency – an employee does not step outside the course of employment. The employee who removes himself from his employer-assigned job duties to take action or render aid that – while not of a direct benefit to the employer – may still be within the scope of those things it is contemplated a reasonable person may do, or is reasonably expected to do, under a given circumstance. No job description can list every duty an employee is expected to perform or conduct from which they must refrain. As such, humane or friendly behavior can be classified as falling within the course of employment, simply because such conduct is desirable and because human services cannot be employed without the expectation that people will act humanely.
Many jurisdictions outside of California have concurred with this finding.
I feel compelled to play Devil’s Advocate. What if I changed the scenario? What if Johnny was an office worker, sitting in his office with a window view of the roadway and had looked up to observe all the same horrific scene, would he then have a claim? What If Johnny had CPR training and – believing he could render aid to those injured – got up out of his desk and left his work area to proceed into the street and check on the status of those involved in the accident, would he have a claim? If I may coin a phrase, the “industrial curtilage” of Johnny’s work area out on the roadway is no different than inside an office setting; once Johnny departs from the area immediately surrounding his job site to move out into the roadway and check on a motor vehicle accident that is completely unrelated to his employment, is he is no longer performing work arising out of or incidental to his employment. Johnny’s not a safety officer and he does not have a charge (by virtue of his job description or duties) to act as a first responder: Why not just call 9-1-1 and turn the situation over to those trained to handle it?
While we can spin vignettes and hypotheticals to the utmost absurdities, the board has consistently found that all reasonable doubt as to whether an injury arose out of employment is to be resolved in the employee’s favor. If an employee believes he is confronted with an emergency situation involving an immediate threat to human life – reasonable on its face considering what Johnny had observed – then an employee’s reaction to the emergency perceived can be found natural and foreseeable. Johnny’s very human response to what he observed was the same as many in the crowd who responded to the first collision.
While the employer can argue that Johnny did not need to chase down the vehicle involved in the second collision but could have instead called 9-1-1 on his cellphone to summon aid, this argument fails to recognize the chaotic nature of any emergency situation. There were no emergency personnel on the scene (the 1st accident had just happened, and the second occurred within moments of the first), and a reasonable person could have surmised that any delay in providing assistance could result in the death of the bicyclist (despite the fact that it was already too late).
Given the nature of his work, the risk that Johnny Asphalt could encounter a traffic accident where he would feel compelled to take immediate action is foreseeable. An employee’s actions when confronted with a perceived emergency situation will be tested by the Board to determine if they were both a natural response, as well as a response that could reasonably be expected under the circumstances. While we can “Monday Morning Quarterback” Johnny’s choices after the dust has settled, it is the Board that must weigh and consider whether Johnny’s actual response to the emergency perceived was so far from what would naturally be expected of a reasonable person faced with that same circumstance as to take it outside of the realm of the foreseeable, and thus outside the course of his employment.
However, you slice it, this scenario presents a complex analysis on causation; but given these particular facts, I am compelled to conclude that Johnny will likely have a compensable workers compensation claim for his PTSD.
I hope you found this article interesting and compelling. As always, happy “Workers Comp’ing” in our great State, and make sure you always “Slow for the Cone Zone!”
By Medy Beauchane, Managing Senior Partner, Chico Office, September 2019.