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California: No Findings of Self-Inflicted Harm or Deviation from Employment

September 27, 2022 (4 min read)

A Board Panel recently issued a noteworthy decision addressing the issues of self-inflicted harm and deviation from employment. Regarding the first issue, the Board Panel affirmed the WCJ’s finding of catastrophic injury resulting from a fall on a stairwell, and that there was insufficient evidence to demonstrate that applicant’s fall was barred pursuant to Labor Code § 3600(a)(5) due to suicidal ideation or self-harm. With respect to the second issue, the Board Panel held that the defense failed to demonstrate that the applicant was engaged in an outright departure from his employment duties thereby rendering the injury non-compensable. Read our headnotes below.


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Jack Rieger, Applicant v. Fox Sports 1, LLC, Discovery RE/Travelers USF&G, administered by Gallagher Bassett Services, Defendants

W.C.A.B. No. ADJ11670075—WCAB Panel: Commissioners Dodd, Snellings, Chair Zalewski

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed September 15, 2022

Publication Status:  CAUTION:  This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition:  Reconsideration is granted, and the March 16, 2022 Findings of Fact and Award is affirmed. To the extent that the March 16, 2022 Petition for Reconsideration and/or Removal seeks disqualification of the WCJ, it is dismissed. To the extent that the April 8, 2022 Petition for Reconsideration seeks disqualification of the WCJ, it is also dismissed.

Injury AOE/COE—Self-Inflicted Injury and Suicide—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant, while employed as production assistant, sustained catastrophic injury resulting from fall on 10/2/2018, and that defendant did not provide sufficient evidence to demonstrate that applicant’s fall was barred under Labor Code § 3600(a)(5) or (6) due to suicidal ideation or self-harm, when WCAB reasoned that exclusion for self-inflicted injury required proof not only that injury was self-inflicted, but also that employee had specific intent to cause their own injury, and that here, although defendant introduced evidence tending to show that applicant could not have fallen over safety railing accidentally without first at least partially climbing it, defendant presented no actual evidence to indicate that applicant intentionally threw himself off stairwell with intent to cause himself injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.21, 4.22; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.03[2], [3]].]

Injury AOE/COE—Departure From Duties—WCAB, after granting reconsideration, held that defendant failed to demonstrate that applicant engaged in outright departure from his employment duties, thereby rendering his 10/2/2018 injury non-compensable, where evidence was uncontested that applicant was injured while using stairwell at his place of employment during work hours, there was no suggestion he was not permitted to use stairwell, security camera footage showed applicant clearly reporting for work on morning of injury, and witnesses confirmed that applicant was performing work that day, and under these circumstances, WCAB found that there was no serious dispute applicant was engaged in his general employment duties at time of his injury, and although defendant insisted that applicant must have at least partially climbed safety railing in order to fall over it, such that he was necessarily engaged in fundamental departure from course of his employment, WCAB held that there may have been any number of possible explanations for why applicant chose climb safety railing which would not constitute bar to compensation, and that because it was impossible to determine why or how applicant fell, any doubts as to compensability should be resolved in applicant’s favor. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.112, 4.113; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.05[1].]

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