Are Mental Injuries Still Allowed Under the Labor Code?

Q. Are mental injuries still allowed under the labor code as amended in the new workers’ compensation reform laws?

A. For a worker to benefit from the “violent act” exception, Labor Code Section 4660.1 says the worker must either be the victim of, or have direct exposure to, a “violent act” within the meaning of Section 3208.3.

Section 3208.3 does not define “violent act,” and California’s courts have rarely addressed this statute in a workers’ compensation context.

The Workers’ Compensation Appeals Board ruled in a 2007 case called Abushi v. Burger King that the manager of a fast-food restaurant who was robbed at gunpoint had been the victim of a “violent act” under Section 3208.3 and so he was entitled to benefits for his psyche injury.

In Woodland Joint Unified School District v. WCAB (Royles), the board said that a school principal was entitled to benefits for a psychiatric injury from having witnessed a student hit by a drunk driver, even though the accident was not a “violent act” under Section 3208.3. The 3rd District Court of Appeal summarily declined review of this decision in November 1999.

A “violent act” is “any act that results in bodily harm or injury to any party involved.”

Black’s Law Dictionary, West’s Legal Thesaurus and Webster’s Third New International Dictionary, all define “violent” as involving a significant amount of physical force. Bauvier’s Law Dictionary also suggests that something “violent” is not “expected or usual.”

These four references all define an “act” as something that is done as a manifestation of the actor’s will.

A “violent act” could be “something that is done by a person with intentionality, which occurs suddenly and unexpectedly, involves a considerable amount of physical force, and causes injury.”

Proving that an injury is “sudden and unexpected” will likely be difficult since California has a similar standard for psyche claims by workers who have been on a job for less than six months. Such workers often have a hard time establishing their accident was a “sudden and extraordinary” circumstance of their
employment.

The state’s 2nd District Court of Appeal last year had an opportunity to address the “sudden and extraordinary circumstance” standard in SCIF v. WCAB (Garcia). The case involved an agricultural worker’s claim for a psychological injury resulting from his fall from a 24-foot ladder.

In March, Division Six of the 2nd DCA concluded that such a fall was “an occupational hazard of picking avocados” for which Rigoberto Garcia, a newly-hired employee at Cole Ranch, could not recover benefits.

Courts in Pennsylvania also considered whether the incident giving rise to a worker’s purely psychological injury claim was particularly unusual for the industry in which the claimant worked. In 2011, the Pennsylvania Commonwealth Court ruled that a liquor store manager who was jabbed in the head and back by a masked gunman was not exposed to “abnormal working conditions” which would have justified payment on his post-traumatic stress disorder claim. The case was Liquor Control Board v. WCAB (Kochanowicz).

Two years prior to that decision, the Commonwealth Court ruled in McLaurin v. Workers’ Compensation Appeal Board (SEPTA), that a bus driver could have anticipated being threatened by a passenger with a gun since such incidents occurred with enough regularity that his employer included the handling of these situations in its drivers training program.

California’s legislators provided a little more statutory guidance with the “catastrophic injury” part of Section 4660.1 than it did with the “violent act” part.

Lawmakers said that a “catastrophic injury” includes, but is not limited to, the loss of a limb, paralysis, a severe burn or a severe head injury.

Official Code of Georgia Annotated Section 34-9-200.1(g) and North Dakota Code 65-05.1-06.1(2)(c) list similar injuries as “catastrophic” in nature.

Maybe this means a simple cut that becomes infected and resulted in the amputation of a limb could meet the standard of “catastrophic,” even though the original injury was minor.

In a 2001 case called Villarreal v. Village of Schaumburg, the Illinois Appellate Court said that a “catastrophic injury” is one that is “financially ruinous.” Various other California statutes and regulations employ similar definitions of the word “catastrophic.”

Education Code Sections 44043.5(a)(1) and 87045(a)(1) both state that a “catastrophic illness” or “injury” means an illness or injury which is expected to incapacitate a person for an extended period of time and create “financial hardship.” Government Code Section 19991.13(b)(1) also defines a “catastrophic illness or injury” as one which “creates a financial hardship.”

An injury causing a significant loss of earning capacity for a worker could arguably be “catastrophic” as well.