AOE-COE

Villacis v. County of Los Angeles Sheriff’s Department (BDP) (45 CWCR 95)  

Applicant was injured in a fall from a four-story building on August 6, 2014 sustaining injury to various body parts. The applicant claimed he had slipped, causing the fall. Defendant contended that applicant jumped off the roof in an apparent suicide attempt.

The applicant testified at trial that he did not attempt suicide and was injured when he slipped on loose gravel and fell off the roof and he did not hear or see anyone else on the roof when he fell.

Two defense witness testified that they saw applicant on the roof.  One of the witnesses described applicant’s face as expressionless and playing before he kind of like casually leapt over the side as if it was nonchalant type of thing. The second witness testified that applicant looked surprised and startled when he turned and saw them, went to the edge of the roof, and hopped down onto something and see if he knew something was on the other side of the ledge that he could land on. A third witness, the last person to exit from the stairs onto the roof, after ensuring that the door would not lock once close, then turned to see applicant’s head striking up over the edge of the roof before ducking down. He described looking over the edge of the roof, seeing applicant’s hands touching the legs and just falling away from the latch.

Defendant attempted to call applicant’s wife is an adverse witness. Applicant objected, citing marital privilege.  Defendant argued that the wife can wave that privilege when she responded to questions and deposition but conceded that she had invoked the privilege for many of the questions asked although answering others. The WCJ, citing Evidence Code 971, did not allow her to testify. Defendant did not offer deposition and evidence.

The WCJ found that the three defense witness’s testimony was credible, but was not consistent and not corroborated, but found applicant’s testimony credible and the defendant had not met its burden of proof that applicant’s fall had been intentional.

Defendant filed a petition for reconsideration.

The WCAB began by concluding that the record lacks medical evidence regarding whether the applicant was suicidal and if so whether the attempted suicide was industrial. There was no psychiatric assessment in the record and none of the medical studies cited by defendants was reviewed by any physician nor offered into evidence.

Citing the in bank decision in Hamilton v. Lockheed Corporation (66 CCC 473), the panel concluded that whether an act is suicidal is a medical question, which requires medical evidence.

Pursuant to the case of Searle v. Allstate Life Insurance Company (38 CA3d 425), the burden of proving intent is properly allocated to the party charge with proving suicide (here, intent to self-inflict injury) an applicant should be permitted to present evidence to navigate suicidal intent. According to that case, if the applicant did not understand the physical nature and consequences of the act, whether he was sane or insane, then he did not intentionally kill himself. The panel concluded without any evidence of mental capacity at the time of the fall, it could not determine whether applicant’s fall was attempted suicide.

The panel conceded that great weight is ordinarily ascribed to the WCJ’s determination on credibility of the witnesses, but concluded that applicant’s wife’s testimony should have been received. Under evidence code 970, 971 and 980 in the case of People v. Bradford (70 CA2d 333), there are two areas of marital privilege: first, a testifying spouse cannot be compelled to testify against another spouse, with certain exceptions. That privilege is vested solely in the testifying spouse. The second area, vested in either spouse if one spouse does testify, is that the testifying spouse cannot disclose confidential marital communications.

This case, applicant’s wife already waived her privilege by answering some questions in the deposition, while asserting the confidential communication privilege as to others. The WCJ should’ve allowed applicant’s wife to testify to the questions that did not contain confidential marital communications. Any further privilege assertions would’ve been analyzed by the WCJ as to whether the privilege would apply. Given the wife’s deposition testimony, defendant should have had the opportunity to cross-examine her at trial.

The panel rescinded the matter and returned it for a Status Conference to allow the parties how to best proceed.

In a footnote the panel remarked that the wife had apparently previously given recorded statements to an insurance investigator to support her husband’s claim. These were not transcribed or offered into evidence. The panel suggested, on remand, that the parties consider whether the wife’s recorded statements constitute a waiver of any confidential communication privilege she holds and, moreover, whether a complete waiver occurred under Evidence Code 973.

It should be noted that the WCAB is bound by the Evidence Code regarding the issue of privilege.

Zhu v. Workers’ Compensation Appeals Board (Court of Appeal) (  ____CCC_____):

The applicant, an in-home caregiver, was riding her bicycle from one private home where she worked to another home where we she was scheduled to work when she was struck and injured by a car. She was paid for working at both locations.

The WCAB concluded that the going and coming rule barred the applicant’s claim for worker’s compensation benefits.

The dissenting Commissioner and the WCJ found an exception to the going coming rule.

The Court of Appeal concluded that an applicant who was injured while riding her bicycle between the homes of disabled clients to care for them on behalf of her employer (the state) was within the course of employment.

The going and coming rule does not apply when the employee is in transit between points other than the home and the workplace.

In these cases, the real issue is not whether the going and coming applies, but whether transit is part of the employment or the employment relationship.

When it is clear that the transit is not a commute between home and work at a fixed time, the inquiry should be whether the transit was the employer’s choice or was for some benefit to the employer or the employment relationship.

The Court of Appeal ruled that under the facts of this case, the going and coming rule does not apply because the applicant was not commuting between her home and the workplace at a fixed time (Hinojosa v. Workers’ Comp. Appeals Bd. (1972) (8 Cal.3d. 150, 157]).   Zhu’s transit bestowed a direct benefit on the Department, as the Department knew that Zhu had to transit between homes to service more than one home a day, her transit was at the implied request of the Department and was thus a part of her employment relationship.

The applicant’s transit for the Department was for the benefit of the Department and was impliedly requested by the department.

In addition, the Court of Appeal agreed did not disagree with Commissioner Razo that the “required vehicle” exception to the going and coming rule applied if the case facts had come under the going and coming rule.

Carrillo v. Workers’ Compensation Appeals Board (W/D) 82 C.C.C. 372)

Applicant, on 4/17/2011, was sent home form his shift as a busboy because business was slow that night. Applicant returned to the restaurant later than evening and went to the patio and bar to socialize. The restaurant did not ask him to return and the manager/owner was not there.

Applicant remained at the restaurant consuming alcohol, until he was asked to leave due to his rowdy behavior. Applicant, after leaving the restaurant, drove his car to a gas station to attempt to buy cigarettes. The gas station refused to sell him cigarettes and he drove to another gas station. Applicant was involved in a single-car accident while driving shortly after midnight.

The WCJ found that applicant did not sustain injury AOE/COE. Applicant filed for reconsideration asserting that the employer condoned the use of alcohol by its employees such that the employer should be found liable for applicant’s intoxication and injury. Applicant cited McCarty v. WCAB. The WCJ in the R&R pointed out that the instant case was distinguishable from McCarty since applicant’s post-shift drinking was not hosted by the employer.

The WCAB denied reconsideration and adopted and incorporated the WCJ’s R&R. They also pointed out that under Labor Code § 3600(a)(9), injuries caused by “off duty” recreational social, or athletic activities are compensable only if the activities are a reasonable expectancy of employment or are expressly or impliedly required by the employment. Pointing out the “reasonable expectancy” test in Ezzy v. WCAB, the panel concluded that applicant did not establish that he had a reasonable belief that his conduct; returning to work to socialize and drink after his shift had ended, was expected or condoned by his employer.

Applicant’s petition for writ of review was denied.

Iniguez v. Workers’ Compensation Appeals Board (Court of Appeal, not published) 82 C.C.C. 310)

Applicant claimed an industrial injury on April 5, 2010 to his head, back, both shoulders and lower extremities. In March 2011, the applicant was evaluated by a panel Qualified Medical Evaluator in Orthopedic Surgery who found injury to applicant’s left knee, right shoulder and low back. The physician concluded the low back strain had basically resolved but found a 70% apportionment to the industrial back injury. When the Qualified Medical Evaluator prepared his report in 2011, he was not given electro-diagnostic evidence of the nerve damage from 2010. On re-evaluating the applicant in August 2013, the evaluator found radiculopathy in the neck and low back.

At a pretrial conference in November 2011, the issue of injury arising out of and occurring in the course of employment was raised, along with the ancillary issue regarding reporting and notice. Parts of the body injured were not specified, nor were they delineated at the trial on February 13, 2012, at which applicant testified to shoulder and knee problems.

The Workers’ Compensation Judge, on February 24, 2012, found the applicant sustained injury to his left shoulder and right knee, but there was no finding that they were the only parts of the body that were injured. The WCJ held the matter was not barred either by Labor Code §§ 3600 (a) (10) or 5400.

At further trial in May 2015, injury to other body parts was raised, including neck, back, and sleep disorder. The WCJ found injury to only the shoulder and knee, holding that although the neck and back had been claimed in 2011, those body parts were not mentioned at the initial trial. Because no petition for reconsideration had been filed, the 2012 findings had become final and the claim for back and neck injury was barred by collateral estoppel and was deemed to have been adversely decided pursuant to Labor Code § 5815. The applicant filed a petition for reconsideration and the WCJ recommended denying reconsideration and adding res judicata as a basis for precluding the neck and back claim.

The WCAB in a two-to-one decision adopted, incorporated and affirmed the judge’s decision, noting that by not seeking reconsideration of the 2012 findings, applicant waived his later claim of the neck and back injury. The dissenting commissioner would have rescinded the judge’s decision and remanded the case to revisit the body parts issue for two reasons: (1) that the 2012 decision violated Labor Code § 5313 by failing to resolve all body parts claimed, and (2) that by adding res judicata, a different theory, to her recommendation, the WCJ should have given applicant an opportunity to respond. The dissent also disagreed with the judge’s reasoning that it was up to the applicant to correct the 2012 decision by seeking reconsideration.

Applicant filed a petition for writ of review which was granted by the Court of Appeal. The Court of Appeal granted review and annulled the decision of the WCAB.

While the case was before the appellate court, the Board admitted that its decision on reconsideration had been erroneous. The court began by noting that the injury to specific body parts was not an issue listed for decision before the 2012 hearing, the purpose of which was to decide threshold issues, leaving for later proceedings the determination of the nature of the injuries. Nevertheless, the WCJ found in 2012 that industrial injuries to the shoulder and knee had been sustained.

Contrary to defendant’s contentions that this determination was a finding of no injury to the back and neck, the WCJ did not hold that the shoulder and knee were the only industrial injuries suffered. If so, the case would have ended, but it was clear to all that it was far from over in 2012, since parts of body injured was an issue at the 2015 hearing, without objection from defendant. The court expressed no doubt that the 2012 determination by the WCJ was not a final award, with preclusive effect by a collateral estoppel or res judicata. A decision that injuries to the right shoulder and left knee were the only industrial injuries was in fact never made in 2012; it is pointless to consider whether the court had authority to act.

The court strongly agreed with the Board’s present position that a finding of industrial injury to certain body parts did not bar applicant from presenting evidence of injury to other body parts at a subsequent proceeding. The court accepted the Board’s request to annul the decision and to remand for further proceedings.

County of Sacramento v. Workers’ Compensation Appeals Board (McCartney)(Court of Appeal, not published) 82 C.C.C. 672

The court majority concluded that the appeals Board erred in reversing the WCJ, who found that applicant, a deputy sheriff, did not sustain injury arising out of and occurring in the course of employment to his skin in the form of actinic keratosis. The Board had applied the “contributing cause” standard of South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291 (80 C.C.C. 489), while relying upon the PQME’s opinion that sun exposure was a contributing factor to the development of applicant’s actinic keratosis though she could not formulate the precise numerical percentage of the contributing effect.

According to the majority of the court, however, the PQME “never acknowledged that there was a causative role of unknown degree arising out of McCartney’s employment. Rather, she took great pains to explain (repeatedly) that it was not possible to attribute the cause of applicant’s condition to any particular period of exposure to the sun, and therefore it was nothing more than speculation to identify the work-related exposure as a contributing cause.” The Court of Appeal ruled on this evidence, they found the WCJ properly concluded that the applicant failed to establish that work-related sun exposure contributed to his condition by a reasonable probability.

The dissent countered, among other things, that the sun exposure McCartney received throughout his life, including his years on the police force, was cumulative and contributory, and that the sun exposure applicant received while employed as a law enforcement officer played some role in the development of actinic keratosis, but the PQME could not give a definitive percentage of how much it caused. The majority disagreed that the PQME’s testimony could be read as supporting the latter point.

Torres v. Greenbrae (BPD) (45 CWCR 152):

 

The applicant was employed as a tree trimmer, fell from a tree, hit his head on the tree trunk and lost consciousness. The applicant was transported to hospital and diagnosed with a closed head injury, loss of consciousness, and a cervical strain.

The applicant complained of dizziness, nausea, problems standing, severe pain in the head, neck pain, confusion when driving. The applicant complained of nightmares about falling generally and falling out of a tree.

The parties stipulated that he sustained physical injuries to his head, neck, back, and ears.

The applicant was seen by a psychiatrist who diagnosed a mild traumatic brain injury and concluded the applicant had sustained a psychiatric injury secondary to the brain injury. He signed the applicant with a 14% whole person impairment. The applicant was also seen by Agreed Medical Evaluator in neurology: found post traumatic headaches, cognitive, vestibular, neck impairments.

The matter proceeded to trial and the parties stipulated applicant sustained a psychiatric injury, disagreed on whether there was compensable permanent disability.

The WCJ determine the applicant sustained an industrial injury to his head, neck, back, hears, and psyche, with resulting cognitive difficulties, but also determined that the psychiatric permanent disability was not compensable because applicant had not incurred a catastrophic injury. According to the record, LC §4660.1 was raised at trial, but the violent act exception to the prohibition of psychiatric compensable consequence permanent disability was not specifically addressed.

Applicant filed a petition for reconsideration.

The WCAB concluded that applicant psychiatric injury arose directly from the event that caused this injury. The panel considered the applicant’s nightmares as suggestive that applicant sustained a direct psychiatric injury and noted that the psychiatrist had not addressed whether applicant’s psychiatric injury was direct or compensable consequence of the physical injury.

Labor Code §4660.1(c)(1) denies an increase in permanent disability for psychiatric, sleep and sexual dysfunction that arose from a compensable physical injury, but does not bar psychiatric impairment that directly arises from the injury.

The panel indicated there was conflicting evidence on whether the psychiatric injury was a direct result of the fall and thus required medical-legal clarification for determination on this issue.

The panel concluded that, because applicant raised Labor Code §4660.1 at trial, the issue of violent act exception to the bar of increase ratings for psychiatric disability was preserved even though is not specifically addressed.

The panel next determined that applicant’s injury fit filed an act exception. Pursuant to Labor Code §4660.1(c)(2)(A), even where the psychiatric injury as a compensable consequence of the physical injury, is compensable if it resulted from being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3.

To fall under the violent act exception, the act pursuant to the cases of Larsen (44 CWCR 111) and Madson (45 CWCR 65) must be (1) be characterized by strong physical force, (2) characterized by extreme or intense force, or (3) vehemently or passionately threatening.

The panel rejected defendant’s contention that the term victim is used in the Labor Code Section, showed a legislative intent to limit the section to person’s harm by criminal acts. Panel noted the word victim was not commonly so narrowly construed.  Persons are victims of natural disasters, diseases and political oppression which are not criminal acts.

Further, the legislature had not expressly limited the violent act exception to criminal acts, as it had in Labor Code §4650.5, which conditions its application to situations where the injury as a result of a criminal act of violence against an employee.

The panel concluded that under the plain language of the statute applicant’s psychiatric injury was compensable. The Board stated, applicant’s injury in a fall from a height, striking his head in a tree trunk, was the result of an extreme or intense force and was vehemently threatening, thus fitting two of the three violent act categories.

Because the injury was compensable under the violent act exception, the question of whether was a catastrophic injury question was moot.

The psychiatrist had added sleep and sexual dysfunction pursuant to Almaraz/Guzman II.

The WCAB stated that sleep and sexual dysfunction ratings were add-ons that §4660.1 specifically excludes and that the violent act exception only applies to psychiatric add-ons.

Labor Code §4660.1 did not overrule Almaraz/Guzman II decision in the rules must be read together. The legislature, though §4660.1, undertook to eliminate sleep and sexual dysfunction add-on, to allow such add-ons under Almaraz/Guzman II would circumvent the intent of Labor Code §4660.1, which was to promote uniformity and decrease the number of compensable consequence psychiatric, sleep and sexual dysfunction claims, which, in the legislature’s view constituted a fraud risk.

Moreover, the panel stated, sleep and sexual dysfunction are incorporated into the activities of daily living calculation at table 1-2 of the AMA guides. In short, the sleep and sex disorder at-ions under Almaraz/Guzman II in this case would not only appear to frustrate the intent of LC 4660.1 but would also appear to allow duplicate rating for the same condition.

The WCAB rescinded the WCJ’s findings and determined that the strict AMA guides rating for psychiatric permanent disability be included in combined with the compensable physical disability rating, increasing applicant’s permanent disability from 57% to 78%.

Villacis v. County of Los Angeles Sheriff’s Department (BDP) (45 CWCR 95) (EXPERT MEDICAL EVIDENCE NEEDED IN ATTEMPTED SUICIDE CASE)

Applicant was injured in a fall from a four-story building on August 6, 2014 sustaining injury to various body parts. The applicant claimed he had slipped, causing the fall. Defendant contended that applicant jumped off the roof in an apparent suicide attempt.

The applicant testified at trial that he did not attempt suicide and was injured when he slipped on loose gravel and fell off the roof and he did not hear or see anyone else on the roof when he fell.

Two defense witness testified that they saw applicant on the roof.  One of the witnesses described applicant’s face as expressionless and playing before he kind of like casually leapt over the side as if it was nonchalant type of thing. The second witness testified that applicant looked surprised and startled when he turned and saw them, went to the edge of the roof, and hopped down onto something and see if he knew something was on the other side of the ledge that he could land on. A third witness, the last person to exit from the stairs onto the roof, after ensuring that the door would not lock once close, then turned to see applicant’s head striking up over the edge of the roof before ducking down. He described looking over the edge of the roof, seeing applicant’s hands touching the legs and just falling away from the latch.

Defendant attempted to call applicant’s wife is an adverse witness. Applicant objected, citing marital privilege.  Defendant argued that the wife can wave that privilege when she responded to questions and deposition but conceded that she had invoked the privilege for many of the questions asked although answering others. The WCJ, citing Evidence Code 971, did not allow her to testify. Defendant did not offer deposition and evidence.

The WCJ found that the three defense witness’s testimony was credible, but was not consistent and not corroborated, but found applicant’s testimony credible and the defendant had not met its burden of proof that applicant’s fall had been intentional.

Defendant filed a petition for reconsideration.

The WCAB began by concluding that the record lacks medical evidence regarding whether the applicant was suicidal and if so whether the attempted suicide was industrial. There was no psychiatric assessment in the record and none of the medical studies cited by defendants was reviewed by any physician nor offered into evidence.

Citing the in bank decision in Hamilton v. Lockheed Corporation (66 CCC 473), the panel concluded that whether an act is suicidal is a medical question, which requires medical evidence.

Pursuant to the case of Searle v. Allstate Life Insurance Company (38 CA3d 425), the burden of proving intent is properly allocated to the party charge with proving suicide (here, intent to self-inflict injury) an applicant should be permitted to present evidence to navigate suicidal intent. According to that case, if the applicant did not understand the physical nature and consequences of the act, whether he was sane or insane, then he did not intentionally kill himself. The panel concluded without any evidence of mental capacity at the time of the fall, it could not determine whether applicant’s fall was attempted suicide.

The panel conceded that great weight is ordinarily ascribed to the WCJ’s determination on credibility of the witnesses, but concluded that applicant’s wife’s testimony should have been received. Under evidence code 970, 971 and 980 in the case of People v. Bradford (70 CA2d 333), there are two areas of marital privilege: first, a testifying spouse cannot be compelled to testify against another spouse, with certain exceptions. That privilege is vested solely in the testifying spouse. The second area, vested in either spouse if one spouse does testify, is that the testifying spouse cannot disclose confidential marital communications.

This case, applicant’s wife already waived her privilege by answering some questions in the deposition, while asserting the confidential communication privilege as to others. The WCJ should’ve allowed applicant’s wife to testify to the questions that did not contain confidential marital communications. Any further privilege assertions would’ve been analyzed by the WCJ as to whether the privilege would apply. Given the wife’s deposition testimony, defendant should have had the opportunity to cross-examine her at trial.

The panel rescinded the matter and returned it for a Status Conference to allow the parties how to best proceed.

In a footnote the panel remarked that the wife had apparently previously given recorded statements to an insurance investigator to support her husband’s claim. These were not transcribed or offered into evidence. The panel suggested, on remand, that the parties consider whether the wife’s recorded statements constitute a waiver of any confidential communication privilege she holds and, moreover, whether a complete waiver occurred under Evidence Code 973.

It should be noted that the WCAB is bound by the Evidence Code regarding the issue of privilege.

 

Zhu v. Workers’ Compensation Appeals Board (Court of Appeal) (  ____CCC_____):

The applicant, an in-home caregiver, was riding her bicycle from one private home where she worked to another home where we she was scheduled to work when she was struck and injured by a car. She was paid for working at both locations.

The WCAB concluded that the going and coming rule barred the applicant’s claim for worker’s compensation benefits.

The dissenting Commissioner and the WCJ found an exception to the going coming rule.

The Court of Appeal concluded that an applicant who was injured while riding her bicycle between the homes of disabled clients to care for them on behalf of her employer (the state) was within the course of employment.

The going and coming rule does not apply when the employee is in transit between points other than the home and the workplace.

In these cases, the real issue is not whether the going and coming applies, but whether transit is part of the employment or the employment relationship.

When it is clear that the transit is not a commute between home and work at a fixed time, the inquiry should be whether the transit was the employer’s choice or was for some benefit to the employer or the employment relationship.

The Court of Appeal ruled that under the facts of this case, the going and coming rule does not apply because the applicant was not commuting between her home and the workplace at a fixed time (Hinojosa v. Workers’ Comp. Appeals Bd. (1972) (8 Cal.3d. 150, 157]).   Zhu’s transit bestowed a direct benefit on the Department, as the Department knew that Zhu had to transit between homes to service more than one home a day, her transit was at the implied request of the Department and was thus a part of her employment relationship.

The applicant’s transit for the department was for the benefit of the department and was impliedly requested by the department.

In addition, the Court of Appeal agreed did not disagree with Commissioner Razo that the “required vehicle” exception to the going and coming rule applied if the case facts had come under the going and coming rule.

County of Sacramento Contracts v. Workers’ Compensation Appeals Board (McCartney)

(Court of Appeal, unpublished) (____CCC____)

The Court majority concluded that Appeals Board erred in reversing the WCJ, who found that applicant, a deputy sheriff, did not sustain injury arising out of and occurring in the course of employment to his skin in the form of actinic keratosis.

The Board had applied the “contributing cause” standard of South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291 [80 Cal.Comp.Cases 489], while relying upon the PQME’s opinion that sun exposure was a contributing factor to the development of applicant’s actinic keratosis though she could not formulate the precise numerical percentage of the contributing effect.

According to the majority of the Court, however, the PQME “never acknowledged that there was a causative role of unknown degree arising out of McCartney’s employment.  Rather, she took great pains to explain (repeatedly) that it was not possible to attribute the cause of applicant’s condition to any particular period of exposure to the sun, and therefore it was nothing more than speculation to identify the work-related exposure as a contributing cause.

The Court of Appeal ruled on this evidence, the WCJ properly concluded that the applicant failed to establish that work-related sun exposure contributed to his condition by a reasonable probability.”

The dissent countered, among other things, that the sun exposure McCartney received throughout his life, including his years on the police force, was cumulative and contributory, and that the sun exposure applicant received while employed as a law enforcement officer played some role in the development of actinic keratosis, but the PQME could not give a definitive percentage of how much it caused.

The majority disagreed that the PQME’s testimony could be read as supporting the latter point.

Rockefeller v. Department of Corrections (BPD) (45 CWCR 150):

The applicant committed suicide by shooting himself in the head.

The applicant surviving dependence filed a claim against the employer, alleging that his employment caused his death.

The panel Qualified Medical Evaluator reviewed applicant’s records, took a history from the widow that included industrial stress, alcoholism and marital and family problems, without further details being given in his opinion. He did not diagnose applicant with any psychological injury under the DSM-IV with regard to causation. The physician opined that 80% of the cause of applicant suicide related to nonindustrial factors, including 50% alcoholism and alcohol dependence and 30% to chronic marital discord as evidenced by marital therapy notes. Industrial cumulative stress formed the remaining 20% of the cause of applicant suicide.

The physician reading Labor Code §3600(a)(6), concluded that the proper causation standard was whether applicant willfully and deliberately committed suicide. In assessing that question, the physician stated the applicant became willfully intoxicated and took his own life. The only way the applicant’s claim would be compensable is if the trier of fact concluded that voluntary intoxication is not a willful act. The doctor affirmed that opinion in his deposition, but also stated, when questioned about the standard set forth in the case of South Coast Framing (80 CCC 489), it followed that the industrial stress was a contributing cause to applicant’s death.

The physician also testified that the suicide by gunshot was undoubtedly a deliberate action that the worker performed while intoxicated, which he took to be a willful act, although in voluntary intoxication is a different issue.

The physician concluded that pursuant to South Coast the sole issue was whether the employment contributed to applicant’s death, and the answer was yes.

The WCJ found that a decedent’s death by suicide entitled his dependence to death benefits.

Defendant filed a Petition for Reconsideration.

The WCAB began by pointing out that the record had been incompletely developed, pointing out that the Qualified Medical Evaluator emphasize the cause of the suicide and not the cause of the underlying injury.

Acts of suicide, do not generally arise directly from events of employment but rather are the compensable consequence of an underlying industrial injury.

Therefore, to establish a compensable death claim by suicide, applicant’s dependence needed to first establish a compensable injury.

The Qualified Medical Evaluator did not diagnose an underlying psychiatry condition pursuant to DSM-IV, a necessary condition to establish a compensable psychiatric injury.

The WCAB next stated that under the case of “Rolda”, applicant survivors needed to establish that actual events of employment caused a psychiatric injury and that those events were either the predominant, or and a substantial cause of the injury.

Only after such a determination could the survivors prove the injury contributed to the applicant’s death under the South Coast case standard, observing that its interpretation was consistent with the facts in that case, where a prior excepted industrial injury resulted in medication use which, in turn, contributed to death.

Thus, with regard to suicide, applicant carries the initial burden of proof that an industrial injury exists and that the industrial injury contributed to decedent’s active suicide. (LC 5705)

Emphasizing the record was inadequately developed on the diagnosis and predominant or substantial cause issues, the panel reason that without any determination as to whether applicant sustained an industrial injury to his psyche, it is impossible to conclude whether an industrial injury contributed to applicant committing suicide.

Once the applicant satisfies these burdens by a preponderance of evidence, the burden shifted to defendant to establish an affirmative defense.

Defendant has raised the issue of whether applicant’s injury was intentionally self-and conflicted. To establish an affirmative defense to a death claim from an intentionally or willfully afflicted injury, defendant has the burden of proof by a preponderance of the evidence.  The “irresistible impulse” test states that if the decedent’s dependence could establish that the industrially caused injury caused the applicant to feel that the death would provide the only relief from the injury, then the death was compensable and less defendant could establish that applicant could have resisted the impulse. (Burnight 25 CCC 121)

In the case of Chu v. WCAB (61 CCC 926) further discuss Labor Code §3600(a)(6) willful and deliberate act barred to compensability.  The WCAB applying both cases stated that with regard to the affirmative defense of intentional infliction of injury at willful and deliberate causation of death, defendant must prove that decedent’s decision to commit suicide was voluntary in the sense that decedent could have decided against suicide and refrain from killing himself, in spite of any mental illness. In a footnote, the panel commented that the more methodical and planned out a suicide is, the more likely it will be found to be the result of an intentional or willful act.

The WCAB rescinded the WCJ’s determination and returned the case to the trial level to establish whether applicant sustained a compensable psychiatric injury and whether that injury contributed to applicant suicide and whether defendant could establish the affirmative defense.

Puccio v. Online Graphics (BPD) (45 CWCR 155):

Applicant sustained an injury to his right wrist and several ribs on the phone from a ladder.

Paramedics noted that the applicant was in atrial fibrillation with rapid ventricular response. Because of multiple contusions and fractures from the fall, the applicant was not provided the anti-coagulant Heparin.

In the hospital two days later he developed acute altered mental status and right hemiparesis, and was diagnosed with left hemispheric and was diagnosed with left hemispheric embolic cerebrovascular accident (CVA), that resulted in the development of dense right hemiparesis with expressive aphasia.

The Agreed Medical Evaluator reported that applicant’s arterial fibrillation was not industrially related and nine not been caused by the fall from the latter, he stated his belief that applicant was actually having arterial fibrillation when he was on the latter, which may have caused his fall. He went on to state that the nonindustrial arterial fibrillation caused the CPA, and therefore the CPA was nonindustrial.

The Agreed Medical Evaluator changed his opinion during the deposition. The physician concluded the CPA was industrially related. The physician had been provided, for the first time, information that the orthopedic injuries had been found industrial. He then noted that the doctors had withheld blood thinning medication, the indicated treatment for arterial fibrillation, because of the danger its administration posed to a person with applicant’s fracture and contusion injuries.

The Agreed Medical Evaluator concluded it was better than 50%, he would not have had a CVA if he had been started on heparin two or three days before his embolic CVA. He further stated that it was his best medical opinion that, if the fall itself is being considered industrial, then everything that happened pertaining to the fall must be industrial, and the fact that he was not placed on anticoagulant therapy which led to a greater than 50% chance his embolic CVA has to be industrial.

The physician in a supplemental report after reviewing additional records concluded that if fall and subsequent orthopedic injuries have been deemed to be industrial, it is his expert opinion that the CPA, which occurred because of the arterial fibrillation, and the fact that he could not be started on anticoagulant therapy also arose out of or was caused by the fall. This is to the degree of reasonable medical probability.

The WCJ disagreed with the AME, observing that the evaluator based his opinion on a legal, rather than medical conclusion. The Agreed Medical Evaluator had changed his opinion on learning that there’d been a finding that applicant’s injuries were industrial. In determining that the CVA was nonindustrial the WCJ relied on the first opinion of the Agreed Medical Evaluator.

The WCAB granted reconsideration and started by indicating the definition of a compensable consequence. A subsequent injury constitutes a compensable consequence of an industrial injury if the industrial injury was a contributing factor in the occurrence of the subsequent injury. (Beaty 43 CCC 444)

The WCAB further stated that is well settled that injuries occurring during the treatment of the industrial injury are compensable consequences of an industrial injury. (Heaton 11 CC 78).  In Heaton and was held that the aggravation by negligent medical treatment is compensable and rated related back to the industrial injury.

The WCAB reviewed several cases holding that medical treatment for nonindustrial condition may be warranted on an industrial basis if it is needed to cure or relieve the effects of the industrial injury.

The WCAB recognized that but for, and because of, applicant’s industrial injury, he had been denied necessary medical treatment to avoid the risk of a stroke that then occurred and caused his present condition.

The attending physician had to decide whether to treat the arterial fibrillation in light of the need to take applicant the surgery to repair his fractured wrist. The fact that they chose not to administer the blood thinning drugs meant the applicant had a greater than 50-50 chance of suffering a stroke.

Because the medical decision to withhold the treatment for the arterial fibrillation was based on treatment for his industrial injury, his resulting stroke was a compensable consequence of that injury.

The WCAB granted reconsideration and amended the WCJ’s decision to include a finding of industrial injury to applicant’s internal and cardiovascular system in the form a CVA.

Bass v. State of California Department of Corrections (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 213):

The WCJ found applicant suffered a single cumulative trauma injury to his heart, neck, low back, right knee and left foot while working as a correctional officer during the period ending July 15, 2014.

Defendant filed a Petition for Reconsideration.

That applicant suffered two cumulative injuries one to his heart and orthopedic parts of the body because there were two different dates of injury pursuant to Labor Code §5412.

The WCAB agreed with the WCJ.

The WCAB found that the date of injury pursuant to Labor Code §5412 to applicant’s heart and orthopedic injuries relevant to the statute of limitations and application of liability for cumulative injury pursuant to Labor Code §5500.5.

However, the WCAB found that section is not determinative of whether there is one or two continuous trauma is. Even though there were two different dates of injury pursuant to Labor Code §5412 or was only one continuous trauma because there was only one period of injurious exposure.

Ponce v. Barrett Business Services (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 220):

 

The WCJ found that applicant sustained a cumulative trauma injury to his left wrist during the period ending March 4, 2015.

Defendant filed a Petition for Reconsideration arguing that the wrist injury was a compensable consequence of applicant’s prior shoulder injury incurred at applicant’s previous employment was not try determined by the WCJ.

The WCAB upheld the WCJ.

The WCAB found that an injury is a compensable consequence if the subsequent injury is the direct and natural consequence of the original injury and relates back to the original injury.

An acceleration or aggravation of pre-existing industrial injury is compensable as a separate injury.

If the aggravation is reasonably attributable to the employee’s subsequent employment there is a separate injury to that period of employment.

The WCAB found medical evidence in this case indicated that the wrist injury was due to stress on applicant’s wrists because of work he was performing for defendant. That the opinion of the qualified medical evaluator stating that the prior shoulder injury was a contributing factor regarding stress on the wrist was not inconsistent with this explanation regarding why cumulative trauma turn applicant’s employment by defendant was also a contributing factor.

The WCAB found the injury to the left wrist was supported by substantial evidence.

State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (Guzman) (Court of Appeal, Published) (83 CCC 185):

The Court of Appeal held that the applicant, Jose A. Guzman, failed to meet his burden of proving that his psychiatric injury was caused by a “sudden and extraordinary employment condition” under Labor Code §3208.3(d).

Guzman, a construction laborer, sustained industrial injury while operating a compactor used to pack down soil.  The compactor hit a rock while Guzman was working on a hillside with a 45-degree slope; the compactor rose in the air, caused Guzman to fall backwards, and then fell on top of him.

According to the Court, Guzman failed to prove this “employment condition” was “sudden and extraordinary.”

The Court annulled the Board’s decision, which had affirmed that compensation for Guzman’s psyche injury was not barred by §3208.3(d).

Contra Costa Water District v. WCAB (Kirby) (W/D) (83 CCC 366)

 

Workers compensation claim alleging a psychiatric injury on a continuous trauma basis.

Defendant denied applicant’s claim, asserting that applicant did not meet his burden of proof that actual events of employment caused a psychiatric disability, as opposed to perceive events, which were the predominant cause of his psychiatric injury and even if applicant met his predominant cause threshold the psychiatric injury was barred by the good-faith personnel action of Labor Code §3208.3 (h).

The applicant was evaluated by a Qualified Medical Evaluator in psychiatry. The physician, regarding causation, stated that applicant’s psychiatric condition was 50% caused by harassment by defendant’s operation and maintenance supervisor, 10% by harassment by defendant superintendent of distribution, 10% harassment by two of applicant’s subordinates, 5% to a negative performance appraisal.

The matter proceeded to trial and the WCJ ruled that applicant had met his burden of proof of predominant cause threshold of Labor Code 3208.3 (b) (1).

The WCJ indicated the applicant’s right to compensation could be precluded if defendant established that a substantial cause of applicant’s injury was due to lawful discriminatory, good-faith personnel actions pursuant to Labor Code §3208.3 (h).

The WCJ describe various actions that may or may not constitute a personnel actions and explained that whether an action constitutes a personnel action largely depends on the circumstances in which the action occurs.

The WCJ stated there is no controlling law regarding what constitutes a personnel action in the context of Labor Code §3208.3 (h). The WCJ, citing the case of Larch v. WCAB (63 CCC 831), a significant panel decision, the Board held a personnel action depends on the subject matter and factual setting for each case. The term includes, but is not limited to, a termination, disciplinary action short of termination may constitute personnel actions even if they are harsh, however the term does not encompass all actions by any level of personnel in the employment situation or all happenings in the workplace done in good faith.

A personnel action is conduct either by or attributable to management, including such things is done by one who has the authority to review, criticize, demote, or discipline an employee. It is not necessary for the personnel action to have a direct or immediate effect on the employment status. Personnel actions may include, but are not necessarily limited to transfers, demotions, layoffs, performance evaluations and disciplinary action such as warnings, suspensions and termination of employment.

The WCJ turning to the facts of this case indicated that defendant failed to meet its burden of proof that at least 35% of the causation of applicant’s injury was a personnel action.

Defendant filed a Petition for Reconsideration.

The WCJ recommended reconsideration be denied.

The WCJ noted that based on the report of the Qualified Medical Evaluator the physician apportioned 25% of the applicant psychiatric injury applicant’s own maladaptive traits and misperception.

The WCJ further found that 75% was caused by actual events of employment.

The WCJ then concluded that defendant did not meet its burden of proof that applicant’s psychiatric injury was substantially caused by a good-faith personnel action.

As a matter of law the defendant has to prove that good-faith personnel actions constitute at least 35% of the causation of injury.

The Qualified Medical Evaluator found 50% of the causation was the reaction with one person. The WCJ found that this 50% included both personnel actions and non-personnel actions. The term personnel action does not encompass all actions by any level of personnel in the employment situation or all happenings in the workplace done in good faith. The WCJ stated defendant did not have the Qualified Medical Evaluator parcel out the causation of personnel action versus non-personnel action and therefore defendant is not met their burden of proof.

The evidence established that the applicant was given a job supervising to churlish, meaning insubordinate individuals who sought to subvert him at every turn. These events were not a personnel action. The applicant was acknowledged to be a hard worker and a leader. Part of the stress was a dispute about the applicant taking sides which may have been friendship was not a good-faith personnel action.

The petition for reconsideration and writ of review were denied.

Delgado v. County of Santa Barbara (Court of Appeal/Noncertified) (83 CCC 25):

 

Matthew Delgado, a deputy of the Santa Barbara Sheriff’s Department, caused an automobile accident, injuring Darren Flath.

At the time of the accident Delgado was not on duty as a deputy sheriff, but was driving the vehicle by Senate Barbara County. Delgado was attending a training conference in another county and was driving from a personal event back to the residence at which he was staying the accident occurred.

The facts showed that Delgado was an employee of the County as a deputy sheriff, caused an automobile accident while attending a training conference in another county, that at the time of the accident Delgado was not on duty as a deputy sheriff but was driving a vehicle owned by the county, that the accident occurred while he was driving for a personal event (wedding rehearsal barbecue), was driving back to the residence where he was staying while attending the training conference, that Delgado’s participation in the training conference the use of his car to attend the trading conference were approved by County.

The trial court granted summary judgment in favor of the County and against Flath and Delgado on the grounds that Delgado was not acting within the scope of his employment at the time the accident occurred, and the doctrine of respondeat superior did not apply.

The Court of Appeal granted the writ of review and found that the special errand exception to the going and coming rule applied and the deviation was not material.

The Court of Appeal indicated that under the going and coming, an employee not regarded as acting within scope of his employment while going to or coming from the workplace.

An exception to the rule occurs if the employee is on a special errand.  If the employee is not simply on his way from his home to his place of work or returning from said place to his home for his purposes, but is coming from his home or his returning to it on a special errand either as part of his regular duties or at a specific order or request the employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he is returned or until he deviates therefrom for personal reasons.

The special errand exception applies during the entirety of the errand unless the employee deviates from the errand in such a material manner as to constitute a departure from the course of employment.

To constitute an abandonment, however, the deviation or departure from the employer’s business to pursue a personal errand must be substantial and complete. A mere deviation for personal reasons will be insufficient.

Where the employee may be deemed to be pursuing a business errand and a personal objective simultaneously, he will still be acting within the scope of his employment.

In determining whether an employee has departed from the course and scope of employment, a variety of factors must be considered in weight, including the intent of the employees; the nature, time and place of the employees conduct; the work the employee was hired to do; the incidental acts the employer should reasonably expect the employee to do; the amount of freedom allowed to the employee in performing his or her duties; and the amount of time consumed in the personal activity.

All of the relevant circumstances must be considered and weighed in relation to one another.

In this case Delgado was on a special errand for the County while attending the training class. To determine whether Delgado’s driving to a private party in that county-owned vehicle was a departure from his special errand and, if so, whether it was a complete abandonment as a matter of law the court look to the facts of the case and the factors in court.

In this case Delgado was looking for a way to get a meal without spending too much money or imposing on his host. Delgado was authorized to use the county owned vehicle to obtain meals during the week, in addition to driving to and from the training class, and driving home after the conclusion of the class.

It was reasonable for Delgado to use the County owned vehicle to travel to the event as he did not have a private vehicle while attending the training class. Delgado was using the County owned vehicle because he was personally paying for and arranging for his tuition, and lodging.

Significantly, Delgado went back to the house in which she was staying and remained there for at least two hours before departing for the event.  The gathering was farther from the residence then was the training class, but only by two or 3 miles. Eating dinner clearly is reasonably necessary for the employee’s comfort and convenience during an out-of-town training session, and the only means for Delgado to purchase dinner was to use the County owned vehicle.

The County reasonably expected Delgado to obtain food during the week-long training session. Of particular significance in the court’s analysis is the discipline imposed on Delgado by the county due to what it described as Delgado’s “non-duty conduct” that was “in the course of employment.” While Delgado’s supervisor later attempted to downplay the legal significance of this language, Delgado’s discipline was never revoked, and the written notice of suspension was not corrected.

Delgado supervisor believed it was reasonable for Delgado to drive in the vehicle to the training event. Delgado’s direct supervisor testified the trip was reasonable, and that Delgado did not need the supervisor’s permission to go to the event. A lieutenant from the county and resources department stated in an e- mail after the accident that he had previously approved other employees attending personal events like the event Delgado attended, if it is within reason.

Delgado left for the gathering at 8 PM and arrived before 9 PM. He then left the gathering at about 11 PM. Gathering had no connection to Delgado’s employment or training. Delgado was paid for the period from 7:30 AM to 5:30 PM that day. The accident occurred well outside the time for the training class in the time allotted for computing to and from the training class.

The court concluded the evidence, when considered as a whole, did not show a clear abandonment by Delgado’s special errand so that the trial court could determine as a matter of law that he was outside the scope of his employment at the time of the accident.

The judgment was reversed and appellate was to recover the costs of appeal.

Young v. WCAB (Court of Appeal, published) (42 CWCR 133):

In this case, the applicant was a 64-year-old Butte County correctional Sgt. responsible for guarding inmates sustained injury to his left knee while doing jumping jacks at home. The applicant presented evidence at trial that his job required physical fitness and a formal departmental order confirmed that fact although the order did not specify the types of activities required by the employees to stay fit. The applicant developed his own exercise routine. The applicant had undergone a fitness examination when hired although no evidence was presented of any periodic fitness test.

The WCJ following trial held the injury compensable citing the case of Ezzy v. WCAB (48 CCC 611).

The WCAB reversed and held the injury non-compensable.

The applicant filed a writ which was granted. The Court of Appeal annulled the WCAB decision holding the applicant’s exercise activities at home brought him within LC § 3600 (a) (9).

The court stated that the Ezzy two-pronged test requires that (1) the applicant must subjectively believe that his participation in the injury causing event is required (2) that belief must be objectively reasonable.

The Court of Appeal observed that under the Ezzy test whether applicant’s subjective belief that his participation in the injury causing activity is a question of fact, while whether that belief was objectively reasonable is a question of law to be determine separately.

Applying the Ezzy test to the instant facts the court stated focus must be on the specific activity on which the worker was involved when injured occurred.  The court stated the facts of this case supported a conclusion that the applicant subjectively believe that his participation in the injury causing event was required

The court then turned to the second prong of the test as to whether that belief was objectively reasonable. The court concluded that applicant’s belief was objectively reasonable because the obligation to remain physically fit was merely general. The court observed that the department order demanded a fitness level based on the duties required of a correctional Sergeant and that coupled with the lack of opportunity to exercise during working hours made applicant’s belief that he was expected to engage in an off-duty regiment objectively reasonable.  Further for him to believe that warm-up calisthenics would be expected for a man his age was objectively reasonable.

The court reasoned that it was unrealistic to conclude that off-duty running was not expected of older emergency team officers attempting to meet running requirements and that the same reasoning applied to the jumping jacks in the instant case.

Although the present case did not involve preparation for a required fitness test the employer here did require correctional Sergeants to participate in periodic training exercises involving strenuous activity beginning with warm-up calisthenics designed to forestall injury. Further correctional Sergeants must accomplish an array of physical demanding actions such as cell extraction, Taser use, restraint; grappling, controls, and baton use all requiring sufficient cardiovascular health.

To allay any concerns about potential increase liability the court observed that employers have the ability to pre-approve athletic activities or fitness regimens.

The decision of the board was annulled and the case remanded to the WCAB for further proceedings and awarded applicant costs.

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