California: Court Rules Labor Code Section 3208.3 Burden of Proof Falls on Applicant

California: Court Rules Labor Code Section 3208.3 Burden of Proof Falls on Applicant

The Second District Court of Appeals has reversed a W.C.A.B. award of psychiatric injury for an employee with less than 6 months employment and in doing so has provided valuable additional guidance on the criterion for meeting the statutory exception to the 6 month limitation on such injuries and the burden of proof under Labor Code § 3208.3(d).

In State Fund v W.C.A.B. (Garcia) the applicant was an avocado picker who fell off a high ladder sustaining significant injuries to his head, neck and other body parts. Because he had only been working for 2 months, State Fund denied his claim for psychiatric injury based on Labor Code § 3208.3(d). At trial the only issue for determination was whether the injury met the “extraordinary” criterion of the “sudden and extraordinary” language of the Labor Code. The only witness at trial was the applicant who testified was standing on top of a 24-foot ladder picking avocados from a 35-foot tree in an avocado grove. He testified that no one at Cole Ranch ever advised him of the risk of falling from a ladder and that "as far as he knew," no other Cole Ranch picker had fallen from a ladder. Upon questioning by the workers' compensation judge (WCJ), Garcia stated Cole Ranch did not hold any safety meetings or provide him with a safety harness. SCIF presented no evidence.

The trial judge found the injury met the “sudden and extraordinary” criterion under the statute. On Reconsideration the W.C.A.B. majority found the lack of information about how “extraordinary” the injury was decided the issue:

"While not particularly strong evidence on extraordinariness, [Garcia's] testimony was the only evidence. It was uncontradicted and unimpeached. [Citations.] If [SCIF] had presented any documentary evidence or testimony as to the frequency of falls from ladders for avocado pickers or how the rates for insuring them reflect[] the 'common' risk of falls from ladders, then the decision on this issue might have been different."

The Court noted the dissenting opinion:

"[t]he hazards of picking avocados while standing on a ladder are not mysterious or unknown, and this accident cannot reasonably be viewed, therefore, as unusual or totally unexpected." In the absence of persuasive evidence that such falls are rare, the dissent determined Garcia's psychiatric injury claim is barred under section 3208.3, subdivision (d).

The Appellate Court focused on the statutory provision that directed the burden of proof on both the” sudden and extraordinary” criterion rested with the applicant:

Consequently, when an alleged psychiatric injury occurs within the first six months of employment, as it did here, the applicant must demonstrate by a preponderance of the evidence that a sudden and extraordinary employment condition caused the injury. (Matea, supra, 144 Cal.App.4th at p. 1449.) SCIF contends that Garcia failed to meet this burden. We agree.

The Court found significant difference between this case and the Matea case:

In Matea, a rack of lumber suddenly fell on a manager-trainee's left leg while he was in a store aisle at The Home Depot. (Matea, supra, 144 Cal.App.4th at pp. 1449-1450.) He claimed psychiatric injury even though he had been employed less than six months. (Ibid.) Because the record contained no evidence that such occurrences of falling lumber were regular or routine, the court "assumed[] that they are uncommon, unusual and totally unexpected events." (Id. at p. 1450.) In the absence of any contrary evidence, the court held that Matea had satisfied his burden of proving that his injury was the result of a sudden and extraordinary employment condition. (Ibid.)

Garcia contends the same analysis applies here, but we see two critical distinctions. First, Matea's accident occurred in a store aisle, where "'one assumes that such occurrences [of falling lumber] are quite rare, given that those aisles are open to the public.'" (Matea, supra, 144 Cal.App.4th at p. 1441.) Shoppers typically are not on the lookout for falling merchandise as they walk down store aisles. Second, the WCJ determined that Matea’s injury occurred when the wall shelf holding up the rack of lumber gave way without warning, dumping lumber into the aisle. Presumably, the lumber would have struck anyone who happened to be in the aisle at the time. (Ibid.)

Garcia's injury was far different. It did not occur in a public area or in an area shielded from the typical hazards of his occupation. To the contrary, the injury occurred in the avocado grove where Garcia and his coworkers were picking fruit from high trees while standing on tall ladders. A fall under these circumstances cannot be described as an uncommon, unusual and totally unexpected occurrence.

This case was found by the court to be much closer three prior writ denied opinions. The Court felt two cases, also involving falls from heights, were very similar, one involving a roofer and another a tree trimmer. Similarly a Motor Vehicle accident for a limousine driver was not deemed an extraordinary event sufficient to escape Labor Code § 3208.3(d). The Court then focused on who had the burden of proof to show the injury was extraordinary and concluded it was not State Fund’s burden but applicant’s:

“Garcia injured his head when he fell from a 24-foot ladder while picking avocados from a 35-foot tree. No evidence exists that something particularly unusual happened to cause the fall or that he suffered an injury one would not expect from a fall from that height. To support the claim that his fall was extraordinary, Garcia's only testimony was that prior to the accident he had not fallen off a ladder or heard of anyone else falling off a ladder at Cole Ranch. Even the WCAB majority acknowledged that this is "not particularly strong evidence on extraordinariness."

SCIF did not introduce evidence that such falls are an industry hazard or that insurance costs reflect that risk, but that was not its burden. Garcia had the burden to prove that his psychiatric injury was caused by a sudden and extraordinary employment event. (Matea, supra, 144 Cal.App.4th at p. 1449.) He did not meet that burden. Garcia's observations during his brief employment at Cole Ranch and his prior unspecified fruit-picking experiences do not establish his injury was caused by an event that was uncommon, unusual and totally unexpected. There was no evidence the employer violated any safety regulations. An event does not become presumptively extraordinary because the employer offers no evidence it is regular or routine. As noted in the WCAB's dissent, "[S]uch a broad interpretation could place a greater risk of liability on those employers whose safety measures are better and more effective, i.e., those who manage to prevent accidents on the job from becoming routine or commonplace." In the absence of more persuasive evidence that Garcia's fall was extraordinary, his claim for psychiatric injury is barred under section 3208.3, subdivision (d).” (Emphasis added by undersigned)

COMMENTARY:

The most significant part of this decision is the last quote above. The Court essentially told us that we do not have to ignore the obvious. Many cases at the trial level rest on who has the burden of proof on a specific issue. The WCJ placed the burden on defendant to show the injury was not extraordinary rather than the employee meeting the contrary burden. The W.C.A.B. panel was split on whether applicant had met the burden and relied on the lack of information presented by defendant. However the Appellate Court noted the applicant had the burden and presented minimal and unconvincing evidence to overcome the obvious. As noted in prior W.C.A.B. decisions, falls are a natural risk of working at heights. This is an observation that should be obvious to everyone and it should not require evidence to make it obvious. A little evidence that falls are an occasional risk and that employers take efforts to protect from such risks would have probably sealed the deal even at the W.C.A.B. This case helps to make the holdings in the Bayanjargal v. Workers’ Comp. Appeals Bd. (2006) 71 Cal.Comp.Cases 1829, Romero v. California Ins. Guarantee Assn. (2005) 33 Cal. Workers' Comp. Rptr. 75 [2005 Cal. Wrk. Comp. P.D. LEXIS 7] and Diaz v. Workers' Comp. Appeals Bd. (2004) 69 Cal.Comp.Cases 618 [writ denied] where the W.C.A.B. panel decisions addressed this same issue, much more meaningful. Defendants no longer have to rely on a series of writ denied cases but have a solidly written, published opinion of an Appellate Court.

© Copyright 2012 Richard M. Jacobsmeyer. All rights reserved. Reprinted with permission.

Shaw Jacobsmeyer Crain Claffey LLP

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