We’re starting to get more input from the California WCAB on what constitutes a “violent act”.
In May 2016 the WCAB addressed the issue in Deborah Larsen v. Securitas Security Services (2016 Cal.Wrk.Comp.P.D.LEXIS 237).
Larsen was in a parking lot doing her walking patrol as a security guard when she was hit from behind by a car. The employer accepted the physical injury but contested the psych claim, alleging that it was barred by Labor Code 4660.1(c). The applicant alleged that the injury came within the “violent act” exception under L.C. 4660.1(c)(2). and the meaning of violent act under L.C. 3208.3.
The defendant disagreed, but the WCAB panel (Sweeney, Lowe and Deputy Commissioner Newman).
They noted that the applicant was “hit from behind with enough force to cause her to fall, hit her head, and lose consciousness”. That was enough for the panel to reason that under those circumstances there was a violent act. The defendant had argued that a violent act involves criminal or quasi-criminal conduct.
In rejecting this , the Larsen panel concludes that “for purposes of section 3208.3, a “violent act” is not limited solely to criminal or quasi-criminal activity, and may include other acts that are characterized by either strong physical force, extreme or intense physical force, or are vehemently or passionately threatening.”
Recently the WCAB has spoken again on this issue.
The case is Russell Madson V. Cavaletto Ranches (2017) (see a pdf of the case below).
Madson was driving a big rig, hauling lemons in the Paso Robles area when a truck pulled in front of him. Madson avoided a collision, but flipped over and was pinned in the cab of his truck or 35 to 40 minutes. Meanwhile, he was afraid the truck would catch fire. Madson had to be removed from the truck cab with the “jaws of life”.
Madson asserted two theories as to why Labor Code 4660.1(c) did not apply.
First, that his his alleged psyche injury was not derivative, i.e. a consequence of his physical injury but rather directly caused by the accident itself.
Second, that his injury was a “violent act”, such that his psych claim was not barred.
The WCAB panel (Sweeney, Zalewski, and Lowe) agreed on both theories.
As to the latter, the Madson panel references Larsen as persuasive. Specifically, being trapped under the overturned tractor trailer for more than a half hour “can be characterized as resulting from extreme or intense force and was vehemently threatening.”
But what about the other theory? Was the psych injury directly caused by the accident itself or was it a compensable consequence of the physical injury? Here the Madson panel states that :
“Applicant suffered a psychiatric disorder in the form of post-traumatic stress disorder. The QME clearly opined that the traumatic stress that resulted in applicant’s psychiatric disorder was the industrial accident itself and not the compensable physical injury. Thus, the preclusion of psychiatric impairment under section 4660.1(c) does not apply to applicant’s injury.”
We may eventually see more attempts to avoid the L.C. 4660.1(c) limitations of psyche PD claims using this theory. A fall off a ladder. A fall off a scaffold. A fall onto a machine. A slip and fall on a dangerous surface. One can imagine countless injury situations where the traumatic stress for psyche purposes is the anxiety producing event itself, not the reaction to a physical injury. Exactly how far the WCAB is prepared to go with this isn’t clear, but under that theory the event would not have to be a “violent act”.
All of this is important because the 2012 reforms did indicate that there could be no increases for impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder “arising out of a compensable physical injury” unless it came within enumerated exceptions.
After 2012, most observers expected there to be lots of disputes as to whether an injury was “catastrophic” under L.C. 4600.1(c)(2)(B).
Ironically, it has turned out that-so far at least-the case law on exceptions has been on these other issues within LC. 4600.1(c).
Here is a link to the text of Madson V. Cavaletto Ranches: